The Slimy Sea – Employers Hacking Into Injured Crewmen’s Shipboard E-mails

For the past ten years, maritime workers aboard ships and fishing vessels at sea have been able to cheaply stay in contact with their wives, children and girlfriends, and even run a shoreside business, utilizing the ship’s e-mail system. There has never been much privacy on a ship at sea, but most crewmen think their ship-to-shore e-mails to their wives and girlfriends are confidential. Few crewmen realize that those e-mails on company provided computers and accounts may not be confidential, even though the crewman is using a private password. A recent United States Supreme Court decision, City of Ontario v. Jeff Quon, et al., 130 S.Ct. 2366, suggests that employees utilizing company owned computers may not have a reasonable expectation of privacy that their e-mails will not be read by their employer.

Many crewmen quickly learn that when they are injured at work they are suddenly no longer a valued employee but, rather, damaged goods. The tactics employed by vessel owners in defending seaman personal injury suits have always been a dirty business. When a serious injury has occurred as the result of negligence, many maritime employers typically begin an attack on the crewman’s character. The defense dredges through the crewman’s history, trying to find evidence about the crewman’s criminal history, prior injuries, prior injury claims, prior employment problems, failure to pay taxes, and drug and alcohol issues.

That dirty business has gotten dirtier with maritime employers hacking into the seaman’s e-mail accounts to read the crewman’s personal messages. The hacking into employee e-mails is highly abusive, because there are no checks or balances on what is and is not relevant to a possible injury claim. In defense of an injury or employment claim, some employers utilize the hacked e-mails to embarrass, intimidate, or harass the injured seaman who is seeking compensation for his/her injuries.

Why would an employer want to find out what is in the crewman’s e-mail messages? A maritime employer involved in a dispute with a crewman over wages, personal injury, or employment discrimination may hack into the crewman’s e-mail account to try to discover the content of the crewman’s messages and to whom and from whom he has been receiving electronic mail. For example, in an injury case the e-mails could contain a description of how or when the injury occurred. While the employer may have a legitimate reason to look in the e-mails for discoverable information to defend the claims against it, the Court Rules provide for proper ways to ask for this information, allowing a crewman to obtain a protective order to prevent disclosure of non-relevant evidence of a highly personal nature. This all might be reasonable; however, once into the crewman’s e-mail accounts the employer is free to dig through the files and messages and review material of a personal and private nature that is not remotely relevant to the injury claim.

No doubt you will hear the argument from the employer that they would not stoop to such sleazy tactics. The reality is that the employer will utilize such tactics. In a recent case involving a confidential settlement, maritime lawyers Beard Stacey & Jacobsen represented a crewman who had worked for nearly ten years aboard a fish processing vessel in the Bering Sea. The crewman slipped and fell down some stairs, requiring two back surgeries that ended his six-figure career as a fisherman. A case was brought against the employer for personal injuries under the Jones Act. Prior to his injury, the crewman had used the shipboard computer to exchange many intimate and explicit e-mails with several different girlfriends over the course of four to five years. After hacking into the crewman’s computer, the employer used the e-mails to defend the injury case, claiming the e-mails violated company policy because of their explicit nature, and claiming the crewman violated the company’s non-fraternization policy. Not stopping, his employer utilized the e-mails in an attempt to embarrass and harass the crewman, making contrived arguments so it could show the e-mails to psychologists, medical care providers, and company employees to prejudice and taint all evidence in the case. On the pretext that the emails did not mention the crewman’s back injury or physical limitations, the employer’s attorney took the crewman’s girlfriend’s deposition and asked her about the explicit e-mails. The slimy defense of this claim focused little on the facts of the accident or the nature of the crewman’s injury but, instead, the defense relied upon a tactic of trying to prejudice a jury by getting in evidence of the sexually laden content of the crewman’s e-mails.

Despite these tactics, the crewman remained unphased and sought to get full and complete compensation for his injuries, and justice was done. Before the court had an opportunity to rule on the admissibility of the e-mails, this crewman was able to fight this slimy tactic with a simple response: He produced multiple e-mails from the company’s management with pornography photographs attached to the e-mails that had been distributed throughout his vessel. It was clear there was no company policy against sending explicit e-mails, and if there was such a policy it was not enforced, and it was violated by management itself. Depositions and requests for production were demanded for all of management’s computers to see if they contained further sexually oriented content and photogrpahs. After discovery of management’s pornographic e-mails, and facing depositions of its own high management officers, the case settled with an agreement that the settlement amount must remain confidential.