Maritime and Vessel Safety
What is the Seaman’s Protection Act?
The Seaman’s Protection Act (SPA) provides whistleblower protections for seamen. In particular the SPA makes it illegal for an employer or vessel owner from retaliating against seamen for reportion violations of law, including reporting maritime safety issues. Importantly, the law prohibits a seaman from waiving this protection via a contract or release.
Who is protected?
Unlike more the more rigid definition under the Jones Act, the SPA defines a seaman as an individual (except scientific personnel, a sailing school instructor, or a sailing school student) engaged or employed in any capacity on board a U.S. flagged vessel or vessel owned by a U.S. citizen. As confirmed in 81 FR 63396, a “citizen of the United States” includes a corporation incorporated under the laws of the United States and a corporation, partnership, association, or other business entity if the controlling interest is owned by citizens of the United States or whose principal place of business or base of operations is the United States.
This may include the following types of employees: longshoremen, stevedores; deckhands, engineers/wheelmen; captains; dock workers; ship medics, welders, tool-pushers, roustabouts, and other maritime employees. In addition, the SPA also may cover some of the following types of vessels:
- Cruise ships;
- Drilling vessels;
- Cargo Vessels;
- Tug boats;
- Research vessels.
- Jack-up rigs;
- Crew boats;
- Dredges;
- Tankers; and
What are the geographical limits of the SPA?
Just like the Jones Act and federal maritime law, there are no geographic limitations to the SPA. Indeed, the SPA covers any seaman working on a U.S. Flagged vessel or vessel owned by a U.S. Citizen regardless of the location throughout the world.
What acts are protected?
The SPA prohibits a person, including an individual or corporation, from retaliating against a seaman for engaging in protected activity. The SPA has identified the following reports as “protected” conduct:
- Reporting or being about to report to the Coast Guard (or other appropriate Federal agency or department) that he believes that a violation of a maritime safety law or regulation has occurred;
- testifying in a proceeding brought to enforce a maritime safety law or regulation;
- refusing to perform duties ordered by his employer because he has a reasonable expectation that performing such duties would result in serious injuries and the seaman sought correction of the unsafe condition from his employer but was refused;
- notifying (or attempting to notify) the vessel owner or the Secretary of a work-related personal injury or work-related illness of a seaman;
- cooperating with a safety investigation by the Secretary or the National Transportation Safety Board;
- furnishing information to the Secretary, the National Transportation Safety Board, or any other public official as to the facts relating to any marine casualty resulting in injury or death to an individual or damage to property occurring in connection with vessel transportation; or
- accurately reporting hours of duty.
What is retaliation?
To prove a SPA claim, a seaman must show an adverse action that is causally connected to the protected activity. Under federal law, adverse action including, termination, layoffs, blacklisting, demotion, denying a promotion, discipline, failing to re-hire, harassment, intimidation, reducing pay, isolation, reassignment, and failing to provide benefits.
What Damages are available?
Under the SPA, a seaman may seek reinstatement, back pay, compensatory damages, punitive damages, other remedies for the unlawful retaliation, and reasonable attorney fees and costs.
How can I prove retaliation?
To prove a claim under the SPA, a seaman must show that (1) a protected act, (2) an adverse action, and (3) a causal connection between the protected act and adverse action. Under the SPA, a seaman only needs to show that the retaliation was a “contributing factor” in the decision to take adverse action against them. Because direct evidence of a retaliatory motive is rare, these claims are generally proven through circumstantial evidence, including close timing between the adverse act and protected act, negative comments, violations of company policies, disparate treatment, evidence that the stated reason – or pre-text – is false, and knowledge of the protected act. In response, the employer must prove by clear and convincing evidence that it would have taken the same action in the absence of the protected activity.
How do I file a claim or lawsuit?
If a seaman has been retaliated against, the seaman or their representative must file a complaint with OSHA within 180 days of the adverse action. After a complaint is filed, OSHA will evaluate and investigate to determine if the complaint sufficiently states a retaliation claim.
If OSHA finds reasonable cause to believe that unlawful retaliation occurred, it will issue findings and a preliminary order. Both parties may object to the findings within 30-days, and request review before an Administrative Law Judge. This is a de novo proceeding, and includes the ability to obtain discovery and testimony before a judge. After a decision by the ALJ, any party, including OSHA, may appeal the decision to the Department of Labor’s Administrative Review Board (ARB).
In addition to this process, the seaman may file a “kickout” complaint in federal court, if the Department of Labor has not reached a final decision within 210 days of the filing of the complaint with OSHA, and the delay is not due to the bad faith of the complainant.
Seaman Protection/Admiralty lawyers
Doyle Dennis Avery LLP has been ranked by U.S. News as one of the best Admiralty & Maritime Law firms in the nation and in Texas. Mike Doyle is a past chair of the American Association of Justice, Admiralty Section, and Jeff Avery is currently the Vice-Chair. At the start of 2022, Doyle Dennis Avery LLP secured a $7.8 million verdict on behalf of a seaman in the case Gillies v. Valaris PLC. Doyle Dennis Avery LLP has also obtained other important verdicts in favor of seaman, including the following Jones Act verdicts:
- $1.75 Million in Roberts v. Rigdon Marine;
- $1.6 Million in Burch v. Westerngeco Resources (Schlumberger);
- $2.14 Million in Pike v. SeaRiver Maritime, Inc.;
- $1.22 Million in Hamilton v. Great Lakes Dredge & Dock Company.
- $4.5 Million in Norfleet v. Chemikalien Seetransport and Heidenreich Marine; and
If you are a Seaman that has been retaliated against or terminated, contact the admiralty attorneys at Doyle Dennis Avery LLP.
