What Should Vessel Owners and Operators Know About the Safer Seas Act?

This alert was quoted in Tradewinds, the world’s biggest shipping news service, on Nov. 13, 2023.

Enacted as part of the National Defense Authorization Act for fiscal year 2023, the Safer Seas Act was passed in the wake of the Midshipman-X scandal and was meant to combat sexual assault and sexual harassment in the maritime industry. The Act mandates that owners and operators of U.S.-flagged vessels comply with various new requirements, including reporting, training and surveillance requirements. We’ve prepared a summary of the most noteworthy changes.

Reporting Requirements

• • The responsible entity of a vessel, defined as the master or managing operator of a documented vessel that is engaged in commercial service, or the employer of a seafarer on such a vessel, is to immediately report complaints and incidents of any “harassment, sexual harassment or sexual assault” in violation of employee policy or law to the Commandant by the fastest telecommunication channel available.
  • The reports have to be submitted to the Coast Guard Investigative Service via the CGIS Tips App or by emailing CGISTIPS@uscg.mil.
  • Failure to report a complaint or incident comes with a potential civil penalty of up to $50,000, up from the previous penalty amount of $5,000.
  • Although initial reports are due immediately, a vessel owner or operator has 10 days to submit a more detailed report.

Policies and Procedures to Prevent and Identify Sexual Assault and Sexual Harassment

• • The Act requires vessel owners to include policies and procedures regarding sexual assault and sexual harassment in their safety management system manuals.
  • The Act also requires annual training on sexual assault and sexual harassment including information on prevention, bystander intervention, reporting, response and investigation.

Installation of Video Surveillance Systems

• • The Act requires non-passenger carrying, oceangoing, commercial U.S.-flagged vessels to install and maintain a video surveillance system with audio capability in areas adjacent to bedrooms. They must also limit access to the surveillance to law enforcement officials and victims of sexual assault or sexual harassment. Crew must be notified of the presence of the surveillance system, and all records from the surveillance system must be retained for at least one year. This recordkeeping requirement is longer if the surveillance is relevant to a report of sexual assault or sexual harassment. The Act provides that the video and audio surveillance system shall be installed no later than two years after its enactment or during the next drydock, whichever is later.
  • On Feb. 9, the U.S. Coast Guard issued Marine Safety Information Bulletin 1-23 to provide clarification on reporting sexual misconduct on U.S. vessels. One of the many questions raised when reading 46 USC § 10104 and the USCG’s MSIB is the use of the term “harassment.” For example, the reporting requirements refer generally to “harassment,” in addition to sexual harassment and sexual assault. This language could open responsible entities up to claims arising under Title VII, which prohibits harassment in the workplace.

Title VII’s definition of harassment is “unwelcome conduct that is based on race, color, religion, sex, national origin, age, disability or genetic information. Harassment becomes unlawful where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile or abusive.”

Vessel owners and operators may want to err on the side of caution and report complaints and incidents of any internal race-, religious-, national origin- or age-based harassment to the U.S. Coast Guard.

Please contact Magdalini Galitou, Caroline Perlis, or any members of Phelps’ Admiralty or Labor and Employment teams with questions or for advice and guidance.