Policymakers in Washington have again turned their scrutiny upon
the U.S.-flag fleet and the U.S. Merchant Marine Academy at Kings
Point in the wake of new allegations of sexual assault and sexual
harassment (“SASH”) connected to the Academy’s
“Sea Year” program, which provides live deck-plate
training for midshipmen out in the commercial fleet. SASH was a hot
topic on Capitol Hill and at the U.S. Maritime Administration
(“MARAD”) back in 2016, when SASH allegations placed the
Academy’s accreditation in jeopardy.1 MARAD, Kings
Point, and vessel operators imposed a raft of measures to reign-in
misconduct, and the issue fell relatively quiet until October 2021,
when “Midshipman X” publicly alleged she had been the
victim of sexual assault during her Sea Year, when she was 19 years
old.
Midshipman X’s heartbreaking allegations were posted to a
whistleblower website,2 set forth a shocking account of
forcible rape, and quickly received widespread media
attention,3 stoking grave concerns at the highest levels
of leadership in Washington. The vessel’s operator immediately
initiated a “top to bottom” investigation and analysis of
its controls and subsequently suspended five crew members. Deputy
Secretary of Transportation Polly Trottenberg and Acting Maritime
Administrator Lucinda Lessley penned a letter to the Kings Point
community to express their “unwavering support” for
Midshipman X4 and the attention of Congress turned back
to the matter.
In October 2021, all of the Chairmen of the U.S. Congress
committees of jurisdiction over MARAD and the maritime industry
penned a letter to U.S. Transportation Secretary Buttigieg
expressing concern. In their letter, the Chairmen shed blame on
“the toxic culture not only at USMMA, but within the maritime
industry.” Additionally, the legislators questioned the wisdom
of continuing the Sea Year “with few meaningful changes or
safeguards in place” and “no indication that meaningful
and necessary steps have been taken to ensure the safety of cadets
in the Sea Year program.” They also called for the removal of
Academy Superintendent Vice Admiral Jack Buono.
The Coast Guard launched an investigation, and the Academy
temporarily suspended the Sea Year program, as it had previously in
2016. Suspension of the hands on training program proved highly
controversial once more, since the program is a core part of the
Academy’s training program and an experience valued by the
midshipmen themselves. Indeed, Midshipman X surfaced through
counsel to explain her aim was not to get the Sea Year program shut
down and stated, “As Kings Pointers, we should not surrender
the ships of the U.S. Merchant Marine to sexual predators,”
and that “We should instead be focused on ruthlessly
eliminating these predators, and the people and groups who enable
and defend them, from the maritime industry
forever.”5
MARAD, working with the Department of Transportation and the
Academy set about developing a more robust anti-SASH framework
focused on improved Sea Year safety, which it announced on December
15, 2021, together with its plan to resume Sea Year. The Every
Mariner Builds a Respectful Culture (“EMBARC”) program is
administered by MARAD and embraces of 30 additional safety features
that commercial carriers must meet to enroll in the program and be
approved to carry cadets.6
Under the EMBARC program, satellite telephones are made
available to midshipmen while afloat and the Academy has
implemented an amnesty policy for violations of alcohol and drug
use policies by students in connection with an alleged SASH event
to encourage reporting.7 Additionally, vessel operators
must establish new compliance plans and procedures, increase
SASH-related compliance training, establish a SASH contact ashore,
impose restrictions on stateroom fraternization, require open-door
interaction with cadets, and provide cadets with lockable
accommodations backed by a master key control
system.8
To date, EMBARC has had few companies enroll, primarily because
the program requires that the numerous SASH policies and procedures
be included in the vessel operators’ Safety Management System
(“SMS”) required by the International Safety Management
(“ISM”) Code, and operators have serious concerns that
this could result in vessel detentions and other penalties,
primarily by foreign port state control unaccustomed to such
provisions in the Safety Management System. In response, MARAD, in
its posted “Q&A” for the program, states
SASH could have direct impact on safety at sea. Companies that
operate U.S.-flag ships carrying USMMA cadets should document their
SASH reporting policies and procedures within their SMS similar to
how other company-specific requirements are added. The end goal is
building trust and mutual respect among a ship’s crew. External
auditors will conduct their regularly scheduled SMS audits using
appropriate protocols to ensure consistency in application. The
Coast Guard has informed MARAD there is no impediment to the
voluntary inclusion of EMBARC standards in vessels’ safety
management systems.9
MARAD has contracted with the American Bureau of Shipping
(“ABS”) to help implement EMBARC for U.S.-flag carriers.
Carriers and ABS have encountered challenges, and stakeholders are
reportedly working on alternative approaches which do not, as an
initial matter, attach the EMBARC provisions to vessel class
certificates.
Both the House and Senate have introduced legislation aimed at
sexual misconduct in the U.S.-flag merchant marine. The Senate
bill, the Improving Protections for Midshipmen Act released by the
Commerce Committee in December 2021,10 provides the
Coast Guard with the authority to revoke a mariner’s license if
found to have committed sexual assault or sexual harassment, and
requires the Coast Guard to assess the applicability of the
Department of Defense’s “Catch a Serial Offender”
anonymous reporting program to the merchant marine.11
The Senate measure would also establish a database of SASH
incidents at the Academy and require exit interviews with students
following completion of Sea Year for population of the database.
Furthermore, the Act would provide additional training and
resources to students, and further fortify the Academy’s
procedures and policies by codifying the position of Special
Victim’s Counsel at the Academy, allow the Department of
Transportation to direct hire employees for the Academy SASH
office, and establish a Sexual Assault Advisory council including
Academy alumni.
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Footnotes
1. See generally Bryant E. Gardner, Window on
Washington: Righting the Ship or Dangerously Off Course, 14
Benedict’s Maritime Bulletin (4th Quarter 2016), https://www.winston.com/images/content/1/1/v2/117906/Window-on-Washington-Fourth-Quarter-2016.pdf.
2. Maritime Legal Aid & Advocacy, https://www.maritimelegalaid.com/blog/i-was-raped-aboard-a-maersk-ship-during-sea-year
(September 27, 2021)
3. Blake Ellis & Melanie Hicken, I was trapped:
Shipping giant investigates alleged rape of 19-year-old during
federal training program, CNN, October 12, 2021.
4. Polly Trottenberg, Deputy Secretary of Transportation,
and Lucinda Lessley, Acting Maritime Administrator, Message to the
Kings Point Community (Oct. 2, 2021).
5. Ian Duncan, Federal sailors academy halts at-sea
training as it reckons with sexual assault accounts, Washington
Post, Nov. 3, 2021.
6. U.S. Maritime Administration, U.S. Department of
Transportation and Maritime Administration Release Plan to Resume
Sea Year with Mandatory Safety Standards (Dec. 15, 2021), https://www.maritime.dot.gov/newsroom/press-releases/us-department-transportation-and-maritime-administration-release-plan.
7. Id.
8. U.S. Maritime Administration, Every Mariner Builds a
Respectful Culture (EMBARC), Sexual Assault and Sexual Harassment
Prevention Mandatory Standards (Dec. 15, 2021), https://www.maritime.dot.gov/education/sea-year-training-program-criteria.
9. U.S. Maritime Administration, Every Mariner Builds
Respectful Culture (EMBARC), Sexual assault and Sexual Harassment
(SASH) Prevention Mandatory eligibility Standards for Participation
in the USMMA Sea Year Program, Frequently Asked Questions (Mar. 18,
2022), https://www.maritime.dot.gov/sites/marad.dot.gov/files/2022-03/Updated%20EMBARC%20FAQ_March%2018%2C%202022.pdf.
10. S. 3196, 117th Cong. (2021).
11. United States Department of Defense Sexual Assault
Prevention and Response, Catch a Serial Offender (CATCH) Program,
https://www.sapr.mil/CATCH.
This article originally appeared in the Second Quarter 2022
Benedict’s Maritime Bulletin. Reprinted with
permission.
The content of this article is intended to provide a general
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