Highlights

  • Even when the U.S. maritime industry has protocols in place to ensure safety of mariners, in some cases it takes an act of legislation to compel change when Congress views change as necessary. A case in point has been the enactment of the Safer Seas Act (the Act), in which Act Congress has made clear that it intends to make the maritime industry safer for all onboard U.S.-flag vessels.
  • Generally, the Act requires owners, masters or managing operators of a U.S.-flagged vessel and/or employers of seafarers on U.S. flagged-vessels (responsible entities) to meet higher standards of compliance related to surveillance, reporting and training, all of which are intended to enhance the safety of all individuals aboard commercial vessels.
  • Since the Act's inception, stakeholders have sought clarity from the U.S. Coast Guard on interpretation of the Act's requirements. The Coast Guard has recently promulgated useful and notable guidance to assist responsible entities to achieve compliance with the Act.

The U.S. maritime industry is steeped in tradition and sometimes takes a conservative approach to change. Even when the industry has protocols in place to ensure safety of mariners, in some cases it takes an act of legislation to compel change when Congress views change as necessary. A case in point has been the enactment of the Safer Seas Act (the Act),1 in which Act Congress has made clear that it intends to make the maritime industry safer for all onboard U.S.-flag vessels. The Act's statutory requirements can generally be found under 46 U.S.C. §§ 3106, 4901 and 11101.

Generally, the Act requires owners, masters or managing operators of a U.S.-flagged vessel, and/or employers of seafarers on U.S. flagged-vessels (responsible entities) to meet higher standards of compliance related to surveillance, reporting and training, all of which are intended to enhance the safety of all individuals aboard commercial vessels. However, since the Act's inception, stakeholders have sought clarity from the U.S. Coast Guard on interpretation of the Act's far-reaching – and in some case ambiguous – requirements. At long last, the Coast Guard has recently promulgated useful and notable guidance to assist responsible entities to achieve compliance with the Act.

What Are the New Policy Documents That Can Assist Responsible Entities to Comply with the Act?

  • Policy Letter 23-04: Guidance on Statutory Information Requirements Within Accommodation Spaces on Merchant Vessels
    • On Nov. 13, 2023, the Coast Guard published Policy Letter 23-04, which covers the statutory requirement for merchant vessels over 100 gross tons to post information regarding prohibitions on sexual assault and sexual harassment. Specifically, Policy Letter 23-04 details the requirements for the contents and logistics of the display of information regarding procedures and resources to report sexual assault and sexual harassment crimes.
  • Policy Letter 23-05: Guidance on Surveillance Requirements for Certain Commercial Vessels That Do Not Carry Passengers
    • On Nov. 13, 2023, the Coast Guard published Policy Letter 23-05, which provides the statutory requirement for certain vessels (including vessels with overnight accommodations for 10 or more persons on seagoing voyages of 600 or more miles) to install and maintain video and audio surveillance systems. These requirements include additional specifications regarding location, notification of and quality of the surveillance. The specifications are quite granular – specifying the number of individuals aboard, length of voyage, length of vessel, etc. – for the requirement to apply and cover a wide range of commercial vessels.
    • Notably, Policy Letter 23-05 provides that recordings must be continuous and uninterrupted, and the quality must be high enough that resolution, frame rate, etc. permits identification of people. Obstructions to the video must be removed and audio must also be high quality. These requirements place a higher burden on responsible entities to obtain and maintain high-quality surveillance equipment to comply with the Act.
  • Policy Letter 23-06: Guidance on Master Key Control Requirements on Merchant Vessels
    • On Nov. 13, 2023, the Coast Guard published Policy Letter 23-06, which provides the statutory requirement for inspected vessels to establish a master key control system.
      • Policy Letter 23-06 requires vessels to establish a list of those with access that must be kept and which includes the name and rank of the crew member with access as well as a logbook of those who use the key.
  • Marine Safety Information Bulletin (MSIB) Number 13-23: Coast Guard Policies to Address Sexual Assault and Sexual Harassment Prevention and Response on Vessels
  • MSIB Number 1-23: Reporting Sexual Misconduct on U.S. Vessels
    • This information bulletin summarizes the reporting requirements of the responsible entity of a vessel to report any complaints or incidents of harassment or sexual assault to the Coast Guard.
  • Mission Management System Commercial Vessel Compliance Work Instruction (MMS CVC-WI-003(3)): U.S. Flag Interpretations on the ISM Code
    • This work instruction (WI) provides guidance on the U.S. Flag Administration's interpretations on the application and implementation of the International Safety Management (ISM) Code.

How Does the Act Define Harassment?

Under the Act, responsible entities of a U.S.-flagged vessel are required to immediately report complaints and incidents of any "harassment, sexual harassment or sexual assault" in violation of employee policy or law to the Coast Guard Commandant directly by the fastest telecommunication channel available. One of the many questions raised when reading 46 USC § 10104 and the Coast Guard'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. But neither 46 U.S.C. § 10104 nor the Coast Guard define "harassment." If the definition is left unaddressed by regulators or Congress, it could raise questions if an operator is alleged to have failed to report a "harassment," and whether Congress' intent grants the Coast Guard the necessary authority to take measures set by themselves. The Coast Guard has attempted to fill this gap in ambiguity by recommending a posture of reporting when in doubt and under an abundance of caution.

What Is the Role of the U.S. Department of Justice on the Reporting Process?

Crimes can be reported via the Coast Guard Investigative Service TIPS app or via email to [email protected]. However, while the U.S. Department of Justice (DOJ) remains a key component in the review of allegations during early stages of an investigation, to date there are no reported cases in which DOJ has accepted a criminal referral from the Coast Guard much less successfully prosecuted a mariner under the Act. Also, the Coast Guard's authority to take action against mariners is limited to suspension and revocation (S&R) proceedings over a respective mariner's credentials, and does not "prosecute" individual mariners.

Nonetheless, the risk to owners/operators remains significant. Failure to report a complaint or incident comes with a potential civil penalty of up to $50,000, a significant increase from the previous penalty amount of $5,000, and failure to adhere could also raise issues of seaworthiness.

How Does the Act Impact a Vessel's Safety Management System (SMS)?

The Coast Guard may verify a vessel's SMS during inspections for certification, annual inspections and oversight examinations. Moving forward and depending on the scope of the impact to a respective vessel's operations, responsible entities may want to consider updating processes and procedures pursuant to the Act, as applicable, in their ISM Code and respective SMS.

Conclusions

The Act is one of the most noteworthy pieces of maritime legislation in recent years with real impact on U.S. vessel operations as it creates new responsibilities for issues such as reporting, evidence and records retention, technical upgrades to vessels and updates to the SMS. To be sure, aspects of the Act remain open to interpretation and in flux, and stakeholders should thus continue to monitor policy and legislative developments to avoid running afoul of compliance mandates.

For specific questions on how the Act could affect your organization, please contact the authors or another member of Holland & Knight's Maritime Team.

Notes

1 Enacted in 2022 as part of the Don Young Coast Guard Authorization Act of 2022 and James M. Inhofe National Defense Authorization Act (NDAA) for Fiscal Year 2023, Pub. L. No. 117-263, Sec. 11608.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.