Military Sealift Command & U.S. Coast Guard Operating Agreement Does Not Address Mariner Sexual Misconduct or Require MSC Captains to Report Allegations of Sexual Assault IAW 46 USC 10104
New York, NY
By: MLAA
The U.S. Coast Guard’s decades-long policy of enabling widespread sexual abuse by pretending sexual harassment and sexual assault are not major safety issues affecting the U.S. maritime industry also extend to the Coast Guard’s policies towards the U.S. Navy’s Military Sealift Command (MSC).
The responsibilities of the Coast Guard (USCG) and MSC regarding the inspection of MSC vessels, incident reporting and investigations, and personnel matters (including referrals of MSC CIVMARS for Suspension & Revocation investigations) are delineated in a lengthy Memorandum of Agreement (MOA) between MSC and the USCG that is frequently updated.
According to the Coast Guard, the MOA is a “living document” that is reviewed at least every two years and updated based on feedback, regulatory and statutory changes, and the national defense climate.
The most recent MOA signed between the USCG and MSC is dated May 30, 2021 and was signed by Rear Admiral Michael A. Wettlaufer, USN, Commander, Military Sealift Command, and Rear Admiral Richard V. Timme, USCG, former Assistant Commandant for Prevention Policy.
The MOA provides guidance with respect to “credentialing, shipping, discharge, suspension and revocation investigations, casualty investigations, and drug and alcohol testing of US Merchant Mariners,” and the MOA states “guidance related to these matters applies to all MSC vessels, and any other USS vessels that have MSC CIVMARs serving as crewmembers, whether or not the vessel is inspected and/or certificated by the USCG.”
The MOA does not specifically address sexual misconduct committed by MSC CIVMARS, and the MOA makes no reference to 46 USC 10104, the Federal Shipboard Sexual Assault Allegation Reporting Law.
The MOA does include procedures for investigations of acts of misconduct, negligence, or violations of law described under 46 CFR § 5.
While the MOA does not directly address sexual misconduct, 46 CFR § 5, which is incorporated into the MOA by reference, includes reference to “rape or sexual molestation,” “perversion,” and “sexual harassment” through charges of official “misconduct” where the sexual harassment violated rules and regulations established by federal law and the policies of Military Sealift Command.
According to the MOA, in the event a MSC CIVMAR is reported by a crewmember to have committed a shipboard sexual assault or engaged in sexual harassment that constitues “misconduct” per 46 CFR § 5,
“MSC will conduct investigations in accordance with Navy & Marine Corps Mishap and Safety Investigation, Reporting, and Record Keeping Manual (OPNAVINST 5102.lD), and Manual of the Judge Advocate General (JAGINST 5800.7F). During the course of investigations, MSC will coordinate with the CG/MSC Senior Investigating Officer to determine if findings indicate a holder of a USCG MMC committed an act of misconduct, negligence, or violation of law described under 46 CFR § 5. Should MSC's investigation reveal a holder of a USCG MMC committed an offense described under 46 CFR § 5, COMSC will determine whether alleged acts are unrelated to inherently military operations and refer relevant findings to USCG for further investigation pursuant to 46 CFR § 5.”
However, while the U.S. Coast Guard has repeatedly ruled that sexual harassment by a USCG-credentialed mariner that violates a company’s or agencies’ human relations policies constitutes official “misconduct” for the purposes of 46 CFR § 5, the Navy & Marine Corps Mishap and Safety Investigation Manual used to investigate official misconduct under the MSC-USCG MOA does not address sexual harassment investigations, because the U.S. Navy does not consider shipboard sexual harassment to be a “Safety” issue.
With respect to reporting, the MOA requires that masters of all MSC vessels immediately report marine casualties to the USCG and submit Reports of Marine Accident, Injury, or Death on USCG Form CG-2692 in accordance with 46 CFR 4.05-1.
However, as MLAA has repeatedly explained, neither 46 CFR 4.05-1 or Form CG-2692 require masters to report allegations of shipboard sexual assault.
The requirement for the master of a vessel to report an allegation of shipboard sexual assault is contained in 46 USC 10104, which states
(a) A master or other individual in charge of a documented vessel shall report to the Secretary [of the department in which the Coast Guard is Operating] a complaint of a sexual offense prohibited under chapter 109A of title 18, United States Code.
(b) A master or other individual in charge of a documented vessel who knowingly fails to report in compliance with this section is liable to the United States Government for a civil penalty of not more than $5,000.
The MOA between the USCG and MSC does not mention 46 USC 10104 or the sexual assault allegation reporting requirements of 46 USC 10104.
This glaring absence of reference to 46 USC 10104 in the MOA is even more noteworthy because the Coast Guard’s signatory to the MOA was Rear Admiral Richard V. Timme, USCG, former Assistant Commandant for Prevention Policy, who is well acquainted with the reporting law.
On March 2, 2021, Timme wrote to Maersk Line, Limited CEO William Woodhour regarding a $10,000 fine the Coast Guard had leveled at Maersk for its failure to report an allegation of shipboard sexual assault in accordance with 46 USC 10104. As MLAA wrote, the $10,000 fine was the first time the Coast Guard had ever fined a mariner or a company for a violation of the sexual assault allegation reporting law.
After Maersk CEO Woodhour complained and whined about the fine—and eventually accused the Coast Guard of engaging in a “systematic harassment campaign” against Maersk—Timme responded to the Maersk CEO on behalf of former USCG Commandant Karl Schultz. In his letter to the Maersk Line, Limited CEO, Timme Wrote:
“[Mr. Woodhour] As you referenced in your letter, Maersk Line, Limited (MLL) was informed of the allegations against Mr. Stinziano by the Master of the Maersk Idaho in February 2015. Although MLL proceeded to conduct an internal investigation at that time, neither the master of the Maersk Idaho [IOMMP member Paul Willers] nor MLL notified the Department of Homeland Security or the U.S. Coast Guard about the complaint of a sexual offense as required by 46 USC § 10104.
Timme’s explanation to Maersk was simple. You heard about an allegation of sexual assault aboard one of your vessels, and you failed to report it to the Coast Guard. You violated the law, and you’re being fine $10,000.
Masters of MSC vessels are Coast Guard-credentialed, and should be required to follow the same reporting laws as masters of commercial vessels. MSC employs more USCG-credentialed mariners than any other American shipping company, and has a deep regulatory and safety relationship with the USCG. Both MSC masters and the leaders of MSC should be required to follow the reporting requirements of 46 USC 10104.
The MOA between the USCG and MSC is frequently updated. The next update should include specific provisions regarding sexual misconduct investigations as well as explicit requirements for MSC to follow the reporting requirements of 46 USC 10104.