Rape, Sexual Assault, Battery, Harassment, Discrimination
Victims of Violence at Sea
Tragically seafarers are raped, sexually assaulted, battered, harassed and discriminated against regularly on ships, tugs and other watercraft. It seems beyond comprehension that such behavior could still exist in a civilized society and aboard U.S and foreign ships, in this day and age.
In our firm we are regularly called by seafarers who are suffering terribly in the workplace at the hands of supervisors, co-workers and their very employers. Many times, the seaman feels hopeless and trapped by overbearing and hateful officers and managers.
The vessel owners, operators and employers can be held liable under several different legal theories and laws, depending on the facts of the case.
Rape, Assault and Battery
Jones Act Liability
Liability of an employer under the Jones Act for an assault by one crewmember against another generally must be based on either of three theories of liability: (1) the assault was committed by the crewmember’s superior for the “benefit” of the ship’s business, (2) the ship’s officers negligently failed to prevent a foreseeable, assault; or (3) the employer negligently hired or retained a seaman although it knew or should have known of the seaman’s unsuitable temperament.
Although limited, a Jones Act employer may have liability for assault by one crewmember (for assaults outside of the scope of the assaulter’s employment duties) if the presence of the assaulter constituted a foreseeable and unreasonable risk of harm to the victim.
In the cases of rape and assault and battery, if evidence shows the acts were foreseeable the ship can be liable.
Unseaworthiness Liability / Savage and Vicious Attacks and Dispositions
The United States Supreme Court has held that the presence onboard of a crewmember of such a “savage and vicious nature” that his mere presence on the ship endangered the crew, renders the ship unseaworthy. Unlike a Jones Act negligence claim, under the doctrine of unseaworthiness, the mere presence of a crewman with a savage and violent disposition may establish liability irrespective of knowledge of the employer, of such violent tendencies.
Officers of Savage and Vicious Character
The Courts place a higher standard with respect to the behavior of Officers than unlicensed crew. The Courts have said, “In short, we think that other Officers and members of a crew of a vessel have the right to expect that the character and behavior of an Officer will be somewhat better than that of an Ordinary seaman.”
Sadly, physical attacks by Officers (who are expected to set an example and behave appropriately) are common. These attacks have been widely reported and the victims are often cadets, other Officers, and unlicensed crew. Passengers are also victims on cruise ships. Often the victim is afraid to report the attack or rape as the Officer may be his or her supervisor and there is a fear of reprisal or fears that the victim will not be believed.
Proof of Violent Disposition for Unseaworthiness
Proof of a violent disposition may be established by either assault with a deadly weapon or by a particularly brutal assault, like rape.
Verbal Abuse and Sexual Harassment for Unseaworthiness
Some cases have held that “mere” verbal abuse or sexual harassment do not establish the savage and vicious nature of a seaman necessary to support a finding that the vessel is unseaworthy. Even unwelcome and harassing physical contact is insufficient to support a claim for unseaworthiness absent a vicious and savage attack. This does not mean these wrongful acts are not actionable under some other legal theory.
Unwanted Physical Contact / Sexual Harassment
Under the Jones Act
Under the Jones Act, some Courts have said unwanted physical contact by co-workers can amount to common law battery. Such conduct could be found wrongful even if Title VII had never been enacted and without regard to concepts of sex discrimination. These assertions of tortious physical contact and significant physical injury are sufficient to create a claim for harassment which the Courts have recognized as cognizable under the Jones Act.
The Courts have long allowed plaintiffs to recover for psychological and emotional harm under the Federal Employers Liability Act or Jones Act maritime cases. The Courts have recognized claims for purely emotional injury resulting from the employers (or its agents) negligent and intentional harassment, threats, and intimidation.
There is legal support for a cause of action under the Jones Act for emotional stress caused by sexual harassment where there is physical contact (unwanted touching) or if there was an immediate risk of physical harm or the victim is in a “zone of danger.” Some cases have held that a worker could make a Jones Act claim for sexual harassment where she was in the zone of danger of physical harm.
Emotional Distress and Discrimination / Harassment Claims
Some Courts have interpreted the “zone of danger” as requiring that there be a threat of actual physical harm: verbal harassment and abuse with no threat of physical harm does not generally constitute an actionable basis for recovery of emotional distress under the maritime law.
Other Courts have said a claim for sexual harassment by a Jones Act seaman does not state a claim under the Jones Act where the claim is purely for emotional injury with no physical contact or injury.
Harassment with Physical Contact
Importantly, Courts have held that intentional harassment (sexual and racial) which involved both physical contact and conduct not involving physical contact is actionable under the Jones Act.
These Courts have determined there is a claim for emotional distress (with physical contact) under the Jones Act when (1) the defendant’s conduct is so extreme in degree and so outrageous in character that it went beyond all bounds of decency and was utterly intolerable in civilized community; (2) that said conduct caused severe emotional distress; and (3) that the defendant intended in performing the acts complained of, to inflict severe emotional distress on plaintiff, or that defendant knew that such severe emotional distress would be certain or substantially certain to result from the conduct.
Intentional Infliction of Emotional Distress
Although there is a split of authority some Courts do recognize a maritime cause of action for intentional infliction of emotional distress. The standards are much the same as stated above and the conduct must be extreme and outrageous.
Safer Seas Act
Legislation has been passed under the Safer Seas Act which takes steps toward eliminating sexual violence, assault and harassment, in the maritime industry and protecting seamen and cadets.
Non-Maritime Discrimination and Sexual Harassment Claims
Referrals to Labor and Employment Attorneys
Often seamen and seafarers call our offices who are victims of discrimination and harassment (sexual and/or racial) and they ask if they can bring a claim against their supervisors or employers. When they call we counsel them about the above maritime rules and standards for assault, battery, rape, discrimination and harassment.
We also explain to them (although they are seamen) there are many “landside” laws, codes and regulations that apply to them in the work environments on a ship. This surprises some seamen as they consider their work maritime and they assume that maritime laws would apply to protect them.
There are times when maritime law does apply (as noted above) and there are times when maritime law does not apply at all in the context of harassment and discrimination. In those cases we regularly counsel seamen that other federal and state laws like Title VII may apply to their claims. In those matters we have close contacts with qualified Labor and Employment attorneys and we help seamen by referring them to those lawyers for analysis of their claims.
Call us Now for a Free Consultation
If you are a seaman or seafarer and you have been the victim of rape, sexual assault, battery, infliction of emotional distress, harassment and/or discrimination call us soon for a free consultation regarding your potential claims.
Often there are very short deadlines under maritime law and federal and state labor and employment laws, codes and regulations. If you are a victim of wrongful acts in the workplace, call us and we will lend a compassionate ear and listen to how you have been wronged. We hope we can help you and make these wrongs right.
