Judge: No Statute of Limitations for Sexual Harassment or Assault Under New Safer Seas Act. Coast Guard May Bring S&R Charges Against Mariners For Sexual Misconduct Occurring Decades Ago.

New York, NY

By: MLAA

In a decision with major consequences for Coast Guard-credentialed mariners, the Chief Judge of the Coast Guard’s controversial ALJ court ruled the newly-enacted “Safer Seas Act” has eliminated the statute of limitations for bringing Suspension & Revocation charges against mariners accused of sexual harassment and sexual assault.

The decision was rendered on April 19, 2023 by Chief Judge Walter J. Brudzinski, in an order denying Captain Joseph R. McCann’s motion to dismiss a 2nd S&R complaint filed against McCann related his alleged sexual harassment of a U.S. Merchant Marine Academy Deck Cadet aboard a Crowley-operated vessel in 2017. 

Captain McCann’s lawyers had sought to have the charges dismissed as time-barred and outside of the 5 year statute of limitations created in the new Safer Seas Act statute at 46 U.S.C. § 7704a(a), which reads:

If it is shown at a hearing under this chapter that a holder of a license, certificate of registry, or merchant mariner's document issued under this part, within 5 years before the beginning of the suspension and revocation proceedings, is the subject of an official finding of sexual harassment, then the license, certificate of registry, or merchant mariner's document may be suspended or revoked.

The primary question before the judge was the interpretation of “official finding.”

The Safer Seas Act defined official finding in two ways. First, the official finding may be a legal proceeding or agency decision that determines an individual committed sexual harassment in violation of a Federal, State, local, or Tribal law. 

Second, an official finding may be “a determination after an investigation by the Coast Guard that, by a preponderance of the evidence, the individual committed sexual harassment . . . if the investigation affords appropriate due process rights to the subject of the investigation.” 

Coast Guard prosecutors argued that the applicable 5 year statute of limitations under 46 U.S.C. § 7704a(a) did not begin to run until the Coast Guard had investigated the allegations of sexual misconduct. 

In its response to Captain McCann’s motion to dismiss the 2nd sexual harassment complaint against him as time-barred, Coast Guard prosecutors argued:

The language of 46 U.S.C. 7704a was drafted specifically to prevent unreported sexual misconduct from escaping scrutiny simply because it was not reported to the Coast Guard until years after its occurrence. Accordingly, the time limit to initiate an administrative action under the newly established bases codified at 46 U.S.C. Ch. 7704 for suspension or revocation of a mariner's MMC who commits sexual harassment is not connected to the date of the incident, which may have remained unknown for years. Instead, the time limitation to serve a complaint for violations of46 U.S.C. 87704a are based on the date of the "official finding".

Coast Guard prosecutors argued that the applicable official finding in the 2017 sexual harassment case against Captain McCann was not Crowley’s internal investigation that led to McCann’s termination, but rather the Coast Guard’s March 2023 determination that there was a preponderance of the evidence supporting a finding that McCann had sexually harassed the USMMA Deck Cadet in 2017.

In its response to Captain McCann’s motion to dismiss, Coast Guard prosecutors argued:

“...the 2017 sexual harassment was discovered by the Coast Guard investigator while preparing for another pending S&R action against Respondent's MMC for substantially similar behavior. The Coast Guard investigation…determined, by a preponderance of the evidence, that Respondent's behavior in 2017 was appropriate for S&R administrative action in March 2023. Accordingly, the Coast Guard timely served this Complaint on March 17, 2023, and if the official finding underlying this Complaint is affirmed by the Administrative Law Judge (ALJ) assigned to this matter, Respondent's MMC may be suspended or revoked.”

Chief ALJ Judge Brudzinski was persuaded by the Coast Guard’s arguments. In his order denying Captain McCann’s attempt to have the charges dismissed, the judge wrote:

“I agree with the Coast Guard, the five-year limitation period begins with “an official finding of sexual harassment.” See 46 U.S.C. § 7704a(a). In this case, in March 2023 the Coast Guard determined that after an investigation conducted in accordance with 46 C.F.R. Part 5, “there was a preponderance of the evidence supporting a finding that Respondent committed the acts alleged in the subject Complaint.” This constitutes an official finding pursuant to 46 U.S.C. § 7704a(c)(1)(B). Accordingly, the Coast Guard had until March 2028 to initiate these proceedings, and its March 15, 2023 allegation of sexual harassment is timely.”

This ruling opens the door to some measure of justice for victims of shipboard sexual harassment and sexual assault via the U.S. Coast Guard’s Suspension & Revocation process.

Anyone who was ever sexually harassed or assaulted aboard an American commercial vessel may now report the incident(s) to the U.S. Coast Guard, no matter how long ago the misconduct occurred, because after passage of the Safer Seas Act, the statute of limitations for S&R cases involving sexual harassment and assault has been eliminated. 

For information regarding reporting incidents of harassment, sexual harassment, or sexual assault to the U.S. Coast Guard visit MLAA’s How to Report page.