Page 18: of Maritime Reporter Magazine (September 2023)

Legal Beat

Sexual Assault and Harassment

Owners and Operators Must Comply with Heightened Reporting Requirements

By Sid Lewis and Sara Kuebel, Jones Walker LLP n response to increased awareness of the prevalence of broadly apply to any documented commercial vessel, regardless sexual assault and sexual harassment (SASH) in the mari- of its size, type, tonnage, or other factor.

time industry — and following a widely reported account In the following, we provide answers to key questions about by a U.S. Merchant Marine Academy cadet of sexual as- the impact of the SSA on owners and operators of U.S.-? agged

I sault aboard a U.S.-? agged ship during her Sea Year training vessels and identify several as-yet unresolved issues.

— Congress enacted into law the Safer Seas Act (SSA) in De- cember 2022. Intended as a direct effort to prevent and punish What types of misconduct must be reported?

SASH, the SSA, among other provisions: On February 9, the USCG issued a Marine Safety Informa- • Requires the (USCG) to revoke the license, certi? cate of tion Bulletin (MSIB) providing guidance on these new report- registry, or merchant mariner’s credential of an individual who ing requirements. Prior to the enactment of the SSA, reporting has been the subject of an “of? cial ? nding” of sexual assault was limited to a certain class of sexual abuse crimes occurring within the previous 10 years and to revoke or suspend any such within the special maritime and territorial jurisdiction of the credential of any individual who has been the subject of an of? - United States.

cial ? nding of sexual harassment within the previous ? ve years. Under the SSA, the scope of what needs to be reported has ex- • Tasks the USCG with taking a more active role in the inves- panded signi? cantly. Commercial vessel owners and operators tigation of SASH aboard commercial vessels. as well as masters and employers of seafarers now must report • De? nes an of? cial ? nding of SASH as including “a deter- complaints and incidents of “harassment, sexual harassment, mination after an investigation by the Coast Guard that, by a and sexual assault ‘that violate’ any law or company policy” (46 preponderance of the evidence, the individual committed sexual U.S.C. § 10104(a)(1)).

harassment or sexual assault if the investigation affords appro- priate due process rights to the subject of the investigation” (46 When and how must reports of SASH be made?

U.S.C. § 7704a). Of note is this phrasing: “by a preponderance Reports of SASH must be made “immediately” after the ves- of the evidence.” This requires the USCG to meet a lesser bur- sel owner or operator gains knowledge of the incident. Options den of proof as compared with the “beyond a reasonable doubt” for making such reports include the Coast Guard Investigative standard required to demonstrate criminality. Service (CGIS) TIPS app and/or the email address CGISTIPS@

Of signi? cant importance to owners and operators of U.S.- uscg.mil, which can be used by all reporting sources, includ- ? agged commercial service vessels, the SSA requires them to ing bystanders and survivors. The USCG also maintains a 24/7 report complaints and incidents of SASH directly to the USCG. watch that can ? eld reports of sexual misconduct via the Na-

Speci? cally, the SSA notes that the “responsible entity of a ves- tional Command Center (at 1 202.372.2100).

sel” must comply with these reporting requirements and further Reports can be made anonymously or with attribution and de? nes a responsible entity as “the owner, master, or managing should include: operator of a documented vessel engaged in commercial ser- • The name, role, and contact information of the person mak- vice” or “the employer of a seafarer on such a vessel” (46 U.S.C. ing the report § 10104(g)). • The name and of? cial number of the documented vessel

Because the SSA de? nes a commercial service as “any type • The time and date of the incident of trade or business involving the transportation of goods or • The geographic position or location of the vessel when the individuals” (46 U.S.C. § 2101(4)), its reporting requirements incident occurred 18 Maritime Reporter & Engineering News • September 2023

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