Strict new federal rules took effect earlier this year that require the reporting of harassment and sexual misconduct within the maritime industry. Six months later, commercial shippers are still trying to clarify exactly what the rules mean for them.
At issue is a provision in the fiscal 2023 National Defense Authorization Act (NDAA), enacted by Congress in December 2022, which included a provision on Sexual Assault and Sexual Harassment (SASH), creating new requirements for both the military and commercial shippers. While the law’s intent is focused on preventing sexual misconduct, industry critics say it could vastly expand criminal prosecution for any kind of harassment, not just sexual.
To implement the law, the Coast Guard in February issued a Marine Safety Information Bulletin (MSIB), “Reporting Sexual Misconduct Aboard U.S. Vessels.” The MSIB requires the “responsible entity” of a vessel (defined as the owner, master, or managing operator) to report to the Coast Guard any complaint or incident of harassment, sexual harassment, or sexual assault that violates company policy.
It also requires that detailed incident reports be filed with the Coast Guard Investigative Service (CGIS), which is mandated to investigate and follow up. “CGIS will leverage all available resources to immediately initiate a criminal investigation for a sexual crime occurring on a U.S.-flagged vessel anywhere in the world,” the MSIB said. The reporting requirement will be satisfied only if the incident is filed with CGIS or with the Coast Guard’s National Command Center.
The major problem, according to the American Waterways Operators,
is that Congress did not define what “harassment” means in the law, and
that reporting is required only if an incident “violates company policy or law” — which can vary from company to company and jurisdiction to jurisdiction. In a recent website post, AWO also said reports of harassment should be predicated on a company’s determination that its policy has been violated and is asking Congress and the Coast Guard for legal clarity.
“The undefined stand-alone term ‘harassment’ expands the reporting requirements far beyond ‘sexual harassment’ into a very wide range of workplace conduct that’s already extensively addressed in and prohibited by law and employer policy,” said Caitlyn Stewart, vice president of regulatory affairs for AWO. She said it’s important that the new reporting requirements do not end up interfering with a company’s ability to take prompt remedial or disciplinary action to ensure the safety of vessel crewmembers.
However, a plaintiff’s attorney representing victims of maritime harassment argues that the existing legal patchwork provides mariners with little or no effective protection, and getting the Coast Guard involved would help.
“Harassment is an enormous problem in the maritime industry and much more widespread than sexual misconduct. Mariners cannot depend on existing laws or company policies to protect them from harassment and bullying,” said attorney J. Ryan Melogy. “AWO wants to roll back protections for mariners.”
Jeremy Gauthier, director of the CGIS, said in a statement to WorkBoat that his office “has seen an increase in the number of incident reports since the Marine Safety Information Bulletin was released,” and that detailed statistics will be published early next year. He believes this reflects growing intolerance of harassment and that victims “trust the Coast Guard will work relentlessly to hold perpetrators accountable.”
While “harassment” is a sweeping term, sexual misconduct has far more specific (although still very complicated) legal definitions. “Sexual assault” is basically an umbrella term covering rape, attempted rape, and fondling, but that can vary by state and even within a state. “Sexual harassment” is typically defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. The term “sexual misconduct” covers both assault and harassment.
By any name, it’s been a long-festering problem in the military services — as well as the Coast Guard, maritime academies, and shipping industry. After years of resistance, Congress last year amended the annual National Defense Authorization Act to remove some authority from commanders to prosecute sexual assault cases, giving it instead to independent prosecutors. The White House described this as the most sweeping change to the Military Code of Justice since it was created in 1950.
The Army, Navy, Air Force and Marine Corps subsequently established new special trial counsel offices to handle sexual misconduct cases. The Coast Guard last April updated its Sexual Assault Prevention, Response and Recovery Program (SAPRR) to create a special trial counsel in its Office of Chief Prosecutor to handle court-martials in serious crimes such as sexual misconduct. The Coast Guard’s policy also extends sexual assault, prevention, response and recovery services to former Coast Guard Academy cadets and recruits.
Separately, earlier this year Congress amended the Maritime Administration’s budget for the U.S. Merchant Marine Academy to pay the cost of new respon- sibilities at Marad and at the academy to curb persistent sexual assault and ha- rassment problems. Also, commercial vessel operators must now comply with new SASH standards to accept cadets from the academy’s Sea Year training program.
