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Has the Jones Act outlived its purpose? What governmental policies and regulations could enhance the prosperity derived from ports and their operations?
Read: The Jones Act ship law has outlived its usefulness.
Read: TRB Special Report: The Marine Transportation System and the Federal Role
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The Jones Act: Competing Factions
The Jones Act (Transportation of Merchandise—46 U.S.C. § 55102) is one of those legendary set of laws that seems to outlive its usefulness, but Jones has ample supporters on both (or all) sides of the issues. This lecture will discuss the merits and demerits of the Jones Act and let you, the student, decide where you stand on the issues.
According to U.S. Customs and Border Protection (2009), the Jones Act applies to the United States, including the island territories and possessions of the United States, e.g., Puerto Rico. See 46 U.S.C. § 55101(a). However, the coastwise laws generally do not apply to the following: 1) American Samoa; 2) the Northern Mariana Islands; 3) Canton Island; or 4) the Virgin Islands. See 46 U.S.C. § 55101(b). The territorial waters of the United States consist of the territorial sea, defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and to points located in internal waters, landward of the territorial sea baseline, in cases where the baseline and coastline differ. This includes all inland navigable waterways. In interpreting the Jones Act, CBP has consistently ruled that a point in the United States territorial waters is a point in the United States embraced within the coastwise laws (p. 4.).
Perhaps no other legislation embodies the intent and challenge of government regulation than the Jones Act. The Jones Act is found in Section 27 of the Merchant Marine Act of 1920. It restricts coastal shipping in the United States to U.S. flagged and crewed ships, and provides legal remedies for injured sailors. Both components impact ports and water transportation today. Some believe that this statute has outlived its usefulness (The Washington Post, 2010).
The Maritime Law Center describes the act as controlling coastwise trade within the United States and determining which ships may lawfully engage in that trade and the rules under which they must operate. Generally, according to the Center, the Jones Act prohibits any foreign built or foreign flagged vessel from engaging in coastwise trade within the United States. Importantly to the student, there are a number of other complimentary statutes that affect coastwise trade and should be consulted along with the Jones Act. Among these are the Passenger Services Act, 46 USC section 289, which restricts coastwise transportation of passengers, and 46 USC section 12108, which restricts the use of foreign vessel to commercially catch or transport fish in U.S. waters (para. 2).
The Passenger Services Act, according to the Center, provides the legislation that controls the operation of passenger vessels in coastwise trade. Further, they say, the difficult issue has always been what constitutes a “passenger”. To wit:
The general definition has been any person other than the ship’s master, a crew member or any person engaged in the ship’s business. The “for hire” issue involves any consideration flowing from the passenger to the ship owner, charterer, agent or any person involved in the ship. The consideration has been construed to be using a company yacht for entertaining customers or clients to develop “business goodwill”. Carried to its logical conclusion would require any vessel unless used solely for personal pleasure to be registered for coastwise trade and inspected. (para. 6)
The net effect of Jones and its complimentary – and protectionist – regulations is, in the opinion of this writer, stunting the U.S. shipbuilding and shipping industries; by prohibiting “foreign owned or foreign built yachts in a commercial application” (para. 7). Foreign built and owned ships may operate in U.S. waters but only for non-commercial purposes. Doing so, by the laws of supply and demand, has increased the cost of U.S. shipping to a point that it (the U.S. shipping industry) is no longer competitive with the global market.
The main provision that garners the Act’s current support has to do with employer and crew protections. Before Jones was enacted, able bodied seaman had little to no rights to recover damages from injuries aboard ship. The Act extended the coverage of the Federal Employers Liability Act to seaman. Pursuant to the Act’s umbrella, the employer is liable for injuries that were caused by the negligence of any of the employees due to negligence of the employer. Bottom line, the employer is culpable beyond just the sole cause of the injury.
The Act permits liberal recompense for damages due to negligence – a claim for which must be filed within three years of the event – such as, as compiled by the Maritime Law Center:
failure to maintain safe equipment and appliances
care in selecting a competent master and fellow crewmen
assaults by fellow crewmen within scope of work
failure to avoid heavy weather
failure to provide medical treatment
failure to rescue, and
failure to supervise, among others. (para. 18)
Damages permitted under the Jones Act include:
medical expense, pain and suffering
loss of wages
loss of support to the seaman’s widow or dependents
loss of value of household services, nurture etc.
loss of fringe benefits, and
In survival or wrongful death actions pain and suffering occurring prior to death (para. 19)
There are exceptions, or provisos, to the Jones Act, interestingly. Hazardous waste, merchandise transferred between barges, empty cargo containers and barges, use of foreign documented oil spill response vessels, Canadian rail lines, Great Lakes rail route, the Yukon River, and transportation of merchandise and passengers on Canadian vessels (U.S. Customs and Border Protection, 2009, pp. 7-8).
Finally, the Act can be waived due to issues of National Defense, pursuant to 46 U.S.C. § 501. Under which, the Secretary of Defense may request the Secretary of the Department of Homeland Security (DHS) to waive the Jones Act to the extent the Secretary of Defense considers such a waiver necessary in the interest of national defense. In this instance, CBP, pursuant to a delegation of authority from the Secretary of DHS shall grant the waiver. For all other waiver requests, the Secretary of DHS is authorized to grant the waiver request if the Secretary of DHS considers it necessary in the interest of national defense (46 U.S.C. § 501(b)). It should be noted that in this latter instance, P.L. 110-417, section 3510, (122 Stat. 4356, enacted on October 14, 2008), amended § 501(b), to require that the Maritime Administrator be consulted regarding the non-availability of qualified United States flag capacity to meet national defense requirements, before the Secretary of DHS grants the waiver request (U.S. Customs and Border Protection, 2009, pp. 8-9).
This week’s activities and research will focus on Federal and other regulations that are complimentary to and in conflict with the Jones Act. To give but one example of Jones’ umbrella that many deem antiquated or in need of modification, I will close by quoting from Jim Walker’s Cruise Law News (2011):
The law in question is the Merchant Marine Act of 1920. This is a U.S. Federal statute which regulates maritime commerce in U.S. waters and between U.S. ports. Section 27, known as the Jones Act, deals with the concept of “cabotage” (coastal shipping). The law requires that all goods transported by water between U.S. ports be carried in U.S.-flag ships, constructed in the United States, owned by U.S. citizens, and crewed by U.S. citizens. This is why you don’t see a cruise ship sailing from New Orleans to Galveston and letting off passengers (for example). The reality today of course is that virtually all cruise ships are foreign flagged in order to avoid US taxes and occupational laws. So the entire US based cruise fleet can’t sail from one US port to another. (para. 3 & 4)
The Washington Post. (2010, June 25). The Jones Act ship law has outlived its usefulness. Retrieved October 15, 2011, from The Washington Post: http://www.washingtonpost.com/wp-dyn/content/article/2010/06/24/AR2010062405500.html
U.S. Customs and Border Protection. (2009). Coastwide trade: Merchandise. Washington, D.C.: U.S. Department of Homeland Security.
Vaughn, M. (n.d.). The Jones Act. Retrieved September 20, 2015, from Maritime Law Center: http://www.maritimelawcenter.com/html/the_jones_act.html
Walker, J. (2011, September 9). Why Can’t You Cruise From One U.S. Port to Another U.S. Port? Retrieved September 20, 2015, from Cruise Law News: http://www.cruiselawnews.com/2011/09/articles/flags-of-convenience-1/why-cant-you-cruise-from-one-us-port-to-another-us-port/
Assignment 3: The Jones Act, Research Paper (Week 7)
Select at least five peer-reviewed articles from the university library dealing with Section 27 and Section 27a of the Merchant Marine Act of 1920, commonly referred to as the Jones Act.
Prepare a 3-5 page paper (main body) that presents a case for EITHER
a) repealing the Act, or parts of it, or
b) keeping the Jones Act in full force and effect.
The presentation should be in APA format citing appropriate sources. Remember that as with all papers this too needs a separate title and reference page.
This assignment will be graded on content, grammar, and format. Keep your submissions concise, focused, and succinct. Quality is preferred, and not quantity of verbiage.
Submit the paper in APA format with at least five supporting peer-to-peer references.
This assignment will be graded on content, grammar, and formatting.
Five Peer-reviewed Articles:
https://apus.primo.exlibrisgroup.com/discovery/fulldisplay?docid=alma991002205414305031&context=L&vid=01APUS_INST:01APUS&lang=en&search_scope=MyInst_and_CI&adaptor=Local Search Engine&tab=Everything&query=any,contains,the Jones Act&offset=0
https://apus.primo.exlibrisgroup.com/discovery/fulldisplay?docid=alma991002197074805031&context=L&vid=01APUS_INST:01APUS&lang=en&search_scope=MyInst_and_CI&adaptor=Local Search Engine&tab=Everything&query=any,contains,the Jones Act&offset=0
https://apus.primo.exlibrisgroup.com/discovery/fulldisplay?docid=hathi_trustumn.31951p00979962f&context=PC&vid=01APUS_INST:01APUS&lang=en&search_scope=MyInst_and_CI&adaptor=Primo Central&tab=Everything&query=any,contains,Section 27 and Section 27a of the Merchant Marine Act of 1920&offset=0
https://apus.primo.exlibrisgroup.com/discovery/fulldisplay?docid=hathi_trustumn.31951d03543592e&context=PC&vid=01APUS_INST:01APUS&lang=en&search_scope=MyInst_and_CI&adaptor=Primo Central&tab=Everything&query=any,contains,Section 27 and Section 27a of the Merchant Marine Act of 1920&offset=0
TLMT+607+Jones Act+Rubric.docx (17 KB)
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