Maritime law could provide recovery for shipboard harassment

Harassment
Courtesy U.S. Navy
Life at sea can be difficult for any mariner, but especially for women given the male-centric history of the industry. Traditional discussion of injuries has often ignored the trauma that comes with onboard harassment and discrimination.

Working at sea is dangerous. It is an environment where serious and often life-threatening injuries can occur in seconds. Because of this danger, individual seamen attached to a ship’s crew have access to specific legal remedies for their injuries. Historic maritime tradition and more recent legislative efforts have created these protections. The three most important seamen injury protections are maintenance, cure and unearned wages (“maintenance and cure”); the Jones Act; and the doctrine of unseaworthiness.

The traditional discussion of injuries in the industry has often ignored the trauma and pain that come with shipboard harassment and discrimination. Mariners are subjected to harassment at sea. Harassment in the industry is such a problem that the U.S. Merchant Marine Academy suspended its Sea Year training for nearly six months in 2017 to give shipping companies time to address these concerns.

In today’s corporate environment, various legal protections exist to prevent employees from suffering employment-related discrimination and harassment. Title VII of the Civil Rights Act of 1964 and equivalent state laws are the usual recovery route for harassment in American workplaces. Depending on the jurisdiction, a claimant bringing harassment or discrimination claims under Title VII must file with either the Equal Employment Opportunity Commission (EEOC) or a state agency between 180 and 300 days from the date a discriminatory act occurs. While such short windows for filing are generally not an impediment to claims at a shoreside job site, such filing deadlines could be fatal to a shipboard harassment claim.

However, a potential plaintiff has two to three years to file a claim for maritime remedial relief, and maritime remedies can provide limited recovery for shipborne harassment claims. Maritime law provides remedies from traditional common law torts when seamen suffer injury. Therefore, while maritime tort claims do not provide per-se protections against harassment and/or discrimination, the injuries that result from such behavior can find remedies in admiralty law.

The maritime remedies are not replacements for Title VII or other anti-discrimination statutes. Statutes like Title VII differ in purpose from maritime law. Title VII and similar statutes exist to address the harasser’s intent to conduct or condone discriminatory behavior. Maritime actions like the Jones Act compensate for the seaman’s injuries. To achieve their purpose, anti-discrimination laws allow injunctive and punitive relief to prevent further discriminatory actions and permit recovery of front pay and reinstatement. Maritime law only provides compensatory damages and possible lost-wage recovery. If a harassment or discrimination claim meets the maritime law requirements, however, the claimant could still maintain a cause of action for recovery for his or her actual injuries even if the statutory claims limitation period has expired.

An argument exists that maintenance and cure is the easiest way to recover damages for harassment at sea. Maintenance and cure is among the oldest recovery avenues available to mariners. Unlike the Jones Act and unseaworthiness, maintenance and cure only requires showing a seaman suffered an injury. It is a “no-fault rule.” A seaman’s illness or injury can be purely physical, psychological or a combination of the two.

Under maintenance and cure, if a seaman is injured during his or her employment aboard a ship, the owner must provide food and lodging, and cover reasonable medical expenses until the mariner reaches maximum medical cure. Maximum medical cure is the point at which there can be no further improvement from the injury. A mariner also can collect unearned pay because the employer is bound to pay the seaman any wages he or she should have earned at the end of the voyage, employment contract or pay period without signed articles. If a mariner has suffered severe enough emotional injury or mental anguish aboard the ship and needs medical attention, including therapy, he or she is entitled to maintenance and cure. If a seafarer has suffered harassment or discrimination to such an extent that it requires medical attention, then he or she must press the employer to cover medical bills along with lost wages for the voyage under maintenance and cure theory.

The best-known maritime remedy for shipboard injuries is the Jones Act. To bring a claim under the Jones Act, a seaman claimant must allege that employer negligence caused an injury. Either a crewmember’s or the shipowner’s negligent actions can meet this requirement. An employer has a fundamental and absolute duty to provide a reasonably safe working environment. A violation of that obligation which causes an injury lies at the base of every Jones Act claim.

A Jones Act-covered injury can be emotional if it manifests physical symptoms. For instance, there has been a viable Jones Act action when an individual claimed the effects of sexual harassment caused vomiting and weight loss. At least one court found that slapping and fondling co-workers, along with threats of sexual assault by harassers, established a Jones Act claim. A plaintiff also may recover for emotional damage under the Jones Act if he or she believes the negligent conduct placed them at immediate risk of bodily harm. Discrimination and harassment, unwelcome sexual advances and requests for sexual favors, along with aggressive verbal and physical behavior, can create direct threats to a person’s safety that place the claimant in the zone of danger.

One route for bringing a Jones Act claim for harassment is through allegations of negligent hiring and crewmember supervision. If the shipping company or employer has an anti-harassment and/or anti-discrimination policy, this may create difficulties in establishing the negligence necessary for a claim. This hurdle may be overcome if a Jones Act plaintiff can show that an employer’s officers, agents or other employees were negligent in supervising the crewmembers’ implementation of corporate polices, and that such failure led to injury.

Finally, claims brought under the doctrine of unseaworthiness may provide a possible recovery route, but harassment claims brought as unseaworthiness issues may prove difficult to support. If a vessel is unfit or unsafe for its intended purpose, then it is unseaworthy. Shipowners have an absolute obligation to provide a seaworthy vessel. The adequacy and the competency of a vessel’s crew is one factor used to determine the seaworthiness of the ship. Because the maritime profession is a rough-and-tough calling often employing irascible and ill-behaved individuals, it has been historically difficult to bring unseaworthiness claims based on crew behavior. However, this view is changing.

In one case, after a drunken ex-convict seaman beat another crewmember who was asleep, the vessel was found to be unseaworthy. One of the most important factors in determining that the assailant’s presence created an unsafe condition, and therefore rendered the ship unseaworthy, was his long and varied criminal history ranging from choking and beating his girlfriend to attacking police officers with beer bottles. A potential claim for unseaworthiness brought because of injuries caused by discrimination or harassment will be very fact-specific.

Shipowners, mariners and other people working on the water should know that it is possible to recover damages for harassment at sea. Shipping companies with U.S.-flagged vessels should understand there is potential liability under both maritime law and the various anti-discrimination statutes for injuries caused by workplace harassment and discrimination by and against crewmembers. It is recommended that shipping companies and maritime employers adjust their human resource training, policies and employee supervision to adequately address potential liability for possible claims arising from onboard crew harassment and discrimination.

Reese B. Mitchell is an associate attorney with Mitchell & Sheahan P.C. in Stratford, Conn. He is a graduate of the U.S. Merchant Marine Academy and Tulane University Law School. He also holds a second mate unlimited license and previously sailed as a deck officer with the Military Sealift Command. For more information, visit www.mitchellandsheahan.com.

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