September 18, 2022
New York, NY
By: MLAA
[January 5, 2023 / Edit: The Safer Seas Act was signed into law by President Biden on December 27, 2022 as part of the National Defense Authorization Act of 2023. The full text of the final Safer Seas Act provisions can be found here.]
The U.S. maritime industry is one important step closer to undergoing a period of radical change concerning the way shipboard sexual harassment and sexual assault are regulated by the United States Coast Guard and by attorneys and advocates for victims and survivors of maritime sexual abuse. And that change could include the removal of scores of sex predators from the ranks of the more than 200,000 Coast Guard documented mariners working afloat in the maritime industry.
On September 14, 2022 the U.S. Senate Committee on Commerce, Science, and Transportation, led by maritime safety crusader Senator Maria Cantwell, approved the Senate’s version of the Coast Guard Authorization Act of 2022, which includes landmark maritime safety provisions that closely align with Representative Peter DeFazio’s “Safer Seas Act,” which was passed by the U.S. House of Representatives in March of 2022 as part of the House version of the Coast Guard Authorization Act of 2022.
[Edited: January 15, 2022: The Full Text of the final version of the Safer Seas Act signed by President Biden can be read here]
Highlights of the Senate version of the Safer Seas Act:
-Amends 46 USC 10104 to create stringent new reporting mandates and procedures for crew, vessel operators, masters, managing operators, employers, and vessel owners to report Sexual Harassment and Sexual Assault incidents to the Coast Guard and outlines the reporting procedures. Provides for a $50,000 per day civil penalty for failure to report SASH incidents to the U.S. Coast Guard (See, The Long, Tragic History of 46 USC 10104, AKA “The Federal Shipboard Sexual Assault Allegation Reporting Law”).
-Requires the Coast Guard to submit an annual report to Congress that includes the number of reports received under section 10104, the number of penalties issued, the number of open investigations, and a statistical analysis of compliance with vessel safety management system criteria.
-Extends the current statute of limitations for Jones Act personal injury cases related to instances of Sexual Harassment and Sexual Assault to 5 years from the current 3 year limitation and clarifies that a private right of action exists for maritime Sexual Harassment and Sexual Assault claims.
-Mandates that non-passenger carrying, ocean-going, commercial vessels install a video surveillance system with audio capability in areas adjacent to bedrooms and limit access of footage to law enforcement officials and victims of SASH.
-Requires shipping company Sexual Harassment and Sexual Assault policies be included in the vessel’s Safety Management System (SMS).
-Protects victims and witnesses who report or intend to report SASH incidents from discrimination by their employer.
-Amends Chapter 77 of title 46, U.S. Code to require the Coast Guard to revoke a license, certificate of registry, or merchant mariner’s document to an individual who has been convicted of sexual assault within the previous twenty years, and it clarifies the ability of the Coast Guard to revoke or suspend such credentials to an individual who has been convicted of sexual harassment within the last ten years.
The Senate bill also gives the Coast Guard the explicit power to revoke a vessel’s certificate of documentation and to essentially render the vessel worthless in cases where the vessel is not complying with the new stringent anti-SASH requirements.
One of the most powerful provisions of the Senate bill is a new Civil Penalty added to 46 USC 10104. The Senate bill states:
‘‘(h) CIVIL PENALTY.—A vessel owner, master, managing operator, or employer of a seafarer that fails to comply with subsections (e) or (f) is liable to the United States Government for a civil penalty of $50,000 for each day a failure continues.
The existing maximum penalty for a failure to report an instance of SASH is a $5,000 civil penalty, which has been increased to just over $10,000 since the establishment of the reporting law in 1990.
MLAA has previously reported that in a Preliminary Assessment Letter (PAL) dated November 3, 2020, S.M. Griffin—Commander, U.S. Coast Guard Hearing Office—notified William Woodhour, President and CEO of Maersk Line, Limited, that Maersk was being fined $10,000 for a violation of 46 USC § 10104 that occurred on February 3, 2015.
MLAA reported that this $10,000 civil fine was “the first ever penalty against anyone, ever, for failing to notify the U.S. Coast Guard of an allegation of shipboard sexual assault in accordance with the “Federal Shipboard Sexual Assault Allegation Reporting Law,” aka 46 USC § 10104.”
The Commandant of the U.S. Coast Guard ultimately overturned the $10,000 penalty and issued a self-serving and Maersk-serving legal opinion that stated the reporting requirement of 46 USC 10104 only applied to masters of Coast Guard documented vessels, and not the owners or operators.
In the case of the $10,000 fine issued to Maersk, 2100 days had elapsed between February 3, 2015 (the date Maersk was notified of the allegations of shipboard sexual assault) and November 3, 2020 (the date the USCG issued the $10,000 PAL to Maersk). If the Senate’s $50,000 per day civil penalty for failure to report allegations of shipboard sexual misconduct were already in effect, instead of a $10,000 fine that was ultimately overturned, Maersk would have faced a civil fine of $105,000,000 (2,100 days x $50,000 per day), which is significantly more money than $10,000, and even significantly more money than $0, which is what the Coast Guard allowed Maersk to pay for an elaborate and criminal sexual assault coverup.
Following approval by the Senate Commerce Committee, the bipartisan bill will now head to the Senate floor for a vote by the full Senate. Because the bill is bipartisan, and because passage of the bill is required in order to fund the operations of the U.S. Coast Guard, passage by the full Senate is highly likely.
The U.S. Constitution requires that both the House of Representatives and the Senate agree to identical legislative language before a bill can be sent to the President for signing. Because the House and Senate versions of the Coast Guard Authorization Act of 2022 are not identical, the differences between the two bills must be resolved by a Conference Committee consisting of members of both the House and Senate. This Conference Committee will produce a Conference Report bill that will be sent back to both Houses of Congress for an up or down, yes or no vote.
The possibility also exists that the Coast Guard Authorization Act of 2022 could eventually be passed as part of the National Defense Authorization Act of 2022 (NDAA 2022). On July 14, 2022 the House version of the Coast Guard Authorization Act of 2022 was passed for a 2nd time by the House of Representatives as an amendment to the NDAA 2022.
It is not known if the Senate intends to pursue passage of the Coast Guard bill through its own version of the NDAA 2022. However, some version of the Safer Seas Act appears poised to be signed into law before the end of 2022.
[Edit: The Safer Seas Act was passed by Congress and signed into law by President Biden on December 27, 2022 as part of the National Defense Authorization Act of 2023. The full text of the Safer Seas Act can be read here]