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U.S. Coast Guard suspends chief mate’s license for inappropriately touching and hazing deck cadet

The U.S. Coast Guard suspended a senior ship officer's license for hazing and inappropriately touching junior personnel while serving as chief mate aboard the MAERSK IDAHO (a 958-foot container ship pictured above). Allegations against the chief mate included nonconsensual touching, assault, battery and sexually oriented teasing and joking towards junior personnel. The court found that the Coast Guard was able to prove some of the charges and suspended the chief mate’s license as a result. The court admonished the chief mate’s behavior noting “Engaging in hazing conduct of [junior personnel] is inconsistent with a substantial position of authority and should not be tolerated.”

The U.S. Coast Guard is authorized to pursue suspension and revocation (S&R) proceedings against a mariner’s license to “promote safety at sea.” Administrative Law Judges have the authority to suspend or revoke a credential or endorsement for violations arising under 46 U.S.C. §§ 7703 and 7704, including charges of misconduct under 46 U.S.C. § 7703(1)(B).

Misconduct is human behavior which violates some formal rule found in places like “statutes, regulations, the common law, the general maritime law, a ship’s regulation or order, shipping articles, and similar sources.” Further, “it is an act which is forbidden, or a failure to do that which is required.” See 46 C.F.R. § 5.27. The Coast Guard must meet the preponderance of the evidence standard when trying to suspend or revoke a mariner's license.

Here, the Coast Guard asserted various charges of misconduct against the chief mate including: (1) engaging in sexual contact or a sexual act in violation of 18 U.S.C. §§ 2246(3) and 2244(b); and (2) engaging in sexual harassment in violation of Maersk’s Anti-Discrimination, Anti-Harassment and Equal Opportunity Policy.

The Coast Guard’s charges were based on alleged incidents involving a second mate and a deck cadet. Charges relating to an engine cadet were dismissed because they were time-barred.

The allegations regarding the second mate were:

  • On January 14, 2015, while conducting a lifeboat drill onboard the MAERSK IDAHO, the chief mate allegedly placed his hand on the second mate’s inner thigh, through clothing, without permission.

  • On January 17, 2015, the chief mate allegedly came up behind the second mate and slapped the second mate’s buttocks, also touching his testicles, through his clothing.

The allegations regarding the deck cadet were:

  • Between December 7, 2014 and March 10, 2015, the chief officer allegedly grabbed the deck cadet and simulated sex acts while the deck cadet was in a lifeboat and at the chart table in the bridge.

The Coast Guard cited other alleged misconduct including the chief officer pretending to punch the deck cadet in the testicles, using sexually-oriented nicknames and stating “cadets are not people.” Other specific situations are referenced in the decision. The deck cadet testified the chief mate’s actions “messed [him] up pretty good” and caused him to want to drop out of school.

The chief mate denied the allegations against him. He first argued the second mate’s allegations were fabricated in response to him giving the second officer a poor performance evaluation. The performance evaluation indicated the second officer had a poor attitude, improperly allowed a lifeboat to free fall without applying brake and struggled with plotting waypoints when the vessel was rerouted unexpectedly. The defense emphasized the second mate’s grievances were filed shortly after and in response to the negative performance evaluation.

The chief mate also challenged the credibility of the deck cadet’s allegations by pointing to inconsistencies in the deck cadet’s statements about the chief mate. The deck cadet initially gave a typewritten statement where he indicated he believed the chief mate’s actions were “off-color but not abusive or sexually violating.” This statement conflicted with subsequent hearing testimony where the deck cadet described more severe conduct. When questioned about the inconsistency, the deck cadet testified he did not initially report the behavior because he wanted to get through his time on the ship to complete his required sea time for graduation. He also testified he felt safer testifying about the events at the hearing compared to when he was still aboard the MAERSK IDAHO.

After considering the evidence, the court found the deck cadet’s hearing testimony was credible and persuasive. The court found the deck cadet did not give permission for the contact and even if the chief mate was intending a joke, the deck cadet did not join in the activity and considered the behavior degrading or humiliating. The court also found the deck cadet was intimidated from initially complaining about the conduct in view of the chief officer’s senior status and his junior status as a deck cadet.

While the court rejected the chief officer’s “broad-based attack” on the second officer’s credibility, it did not find the second mate to be “fully credible” and recognized there were “questions of concern regarding the weight to be accorded to” his testimony. This was based on the lack of immediate complaint, conflicting statements by the second officer and the shipboard friction that existed between the chief officer and second mate. Accordingly, the court expressly limited the weight it gave to the second mate’s testimony.

The court went on to address the specific charges filed against the chief mate:

  • The Coast Guard did not prove he engaged in abusive sexual contact or sexual molestation against the second mate. This finding stemmed from the credibility issues the court noted about the second mate’s testimony.

  • The Coast Guard proved he engaged in nonconsensual touching which constituted assault and battery and hazing of the deck cadet. The court determined that this type of conduct “is not consistent with good order and discipline and safety at sea and fits within the definition of misconduct of 46 C.F.R. § 5.27.”

  • The Coast Guard did not prove his actions toward the deck cadet constituted molestation, sexual contact or a sexual act under 46 C.F.R. § 5.61(a)(3) and 18 U.S.C. §§ 2246(3) and 2244(b). This finding was based on the deck cadet testifying that the chief mate was not acting with malice or as a rapist. So, the court found that the chief mate’s actions “were inappropriate hazing but not taken as a knowing abusive sexual contact.”

  • The inappropriate touching of the deck cadet amounted to an assault and battery without injury under 46 C.F.R. § 5.569. The court classified the deck cadet as a government official because he was serving the ship as part of his federal service as a U.S. Merchant Marine Academy midshipman. This classification resulted in the court finding that the chief mate’s inappropriate touching also constituted interference with a government official in the performance of his official duties in violation of 46 C.F.R. § 5.61(a)(10).

The court also found the chief mate’s actions towards the deck cadet violated Maersk’s company policies relating to harassment which in turn violated 46 C.F.R. § 5.27. Maersk’s company policy defined sexual harassment as:

Unwelcomed sexual advances, requests for sexual favors, and other physical, verbal, or visual conduct based on sex constitute sexual harassment when:

  • Submission to the conduct is an explicit or implicit term or condition of employment

  • Submission to or rejection of the conduct is used as a basis for an employment decision

  • The conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment

Sexual harassment is conducted based on sex, whether directed towards a person of the opposite or same sex, and may include:

  • Explicit sexual propositions

  • Sexual innuendo

  • Suggestive comments

  • Sexually oriented “kidding”, “teasing” or “practical jokes”

  • Jokes about sexually oriented printed or visual material

  • Physical contact such as patting, pinching, or brushing against another person’s body

The court found the chief mate violated this policy when he grabbed the deck cadet from behind and simulated sex acts. He also violated the policy when he directed sexually oriented jokes and teasing towards the deck cadet (See pages 30-31 of the opinion for more detailed examples).

The court specifically rejected the chief mate’s arguments of joking and horseplay as a defense. The court noted that when viewing the issue of hazing or harassment, "the intent of the actor is not the proper focus.” Rather, the “impact on the individual and their perception on the receiving end of the conduct is a critical part in deciding the issue.”

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