The Jones Act And Gulf Oil Spill
Foreign companies possessing some of the world’s most advanced oil skimming ships say they are being kept out of efforts to clean up the oil spill in the Gulf because of a 1920’s law known as the Jones Act—a protectionist law that requires vessels working in US waters be built in the US and be crewed by US workers. On March 2, 1917, President Woodrow Wilson signed the Jones-Shafroth Act. This law gave Puerto Ricans U.S. citizenship. The Jones Act separated the Executive, Judicial, and Legislative branches of Puerto Rican government, provided civil rights to the individual, and created a locally elected bicameral legislature. The two houses were a Senate consisting of 19 members and a 39-member House of Representatives. However, the Governor and the President of the United States had the power to veto any law passed by the legislature. Also, the United States Congress had the power to stop any action taken by the legislature in Puerto Rico. The U.S. maintained control over fiscal and economic matters and exercised authority over mail services, immigration, defense and other basic governmental matters.
The Merchant Marine Act of 1920 (P.L. 66-261) is a United States Federal statute that regulates maritime commerce in U.S. waters and between U.S. ports.
Section 27, also known as the Jones Act, deals with cabotage (i.e., coastal shipping) and 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 and U.S. permanent residents. The purpose of the law is to support the U.S. merchant marine industry, but agricultural interests generally oppose it because, they contend, it raises the cost of shipping their goods, making them less competitive with foreign sources.
In addition, amendments to the Jones Act, known as the Cargo Preference Act (P.L. 83-644), provide permanent legislation for the transportation of waterborne cargoes in U.S.-flag vessels.
The cabotage provisions restrict the carriage of goods or passengers between United States ports to U.S. built and flagged vessels. In addition, at least 75 percent of the crewmembers must be U.S. citizens. Moreover foreign repair work of U.S.-flagged vessels’ hull and superstructure is limited to 10 percent foreign-built steel weight. This restriction largely prevents American shipowners from refurbishing their ships at overseas shipyards.
The U.S. Congress adopted the Merchant Marine Act in 1920, formerly 46 U.S.C. § 688 and codified on October 6, 2006 as 46 U.S.C. § 30104. The Act formalized the rights of seaman (see: Seaman (Admiralty Law)) which have been recognized for centuries.
“From the very beginning of American civilization, courts have protected seaman whom the courts have described as ‘unprotected and in need of counsel; because they are thoughtless and require indulgence; because they are credulous and complying; and are easily overreached. They are emphatically the wards of admiralty.'” Capitol Hill Hearing Testimony, Coast Guard and Maritime Transportation Subcommittee; Testimony by John Hickley, attorney at law. Congressional Quarterly. March 27, 2007.
It allows injured sailors to obtain damages from their employers for the negligence of the shipowner, the captain, or fellow members of the crew. It operates simply by extending similar legislation already in place that allowed for recoveries by railroad workers and providing that this legislation also applies to sailors. Its operative provision is found at 46 U.S.C. § 688(a), which provides:
“Any sailor who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right to trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply…”
This allows U.S. seamen to bring actions against ship owners based on claims of unseaworthiness or negligence. These are rights not afforded by common international maritime law.
The United States Supreme Court, in the case of Chandris, Inc., v. Latsis, 515 U.S. 347, 115 S.Ct. 2172 (1995), has set a benchmark for determining the status of any employee as a “Jones Act seaman.” Any worker who spends less than 30 percent of his time in the service of a vessel on navigable waters is presumed not to be a seaman under the Jones Act. An action under the Act may be brought either in a U.S. federal court or in a state court. The seaman/Plaintiff is entitled to a jury trial, a right which is not afforded in maritime law absent a statute authorizing it.
The Coast Guard and the Administration are quick to point out that some foreign technology is being used in the current cleanup effort. Including:
– Canada’s offer of 3,000 meters of containment boom
– Three sets of COSEQ sweeping arms from the Dutch
– Mexico’s offer of two skimmers and 4200 meters of boom
– Norway’s offer of 8 skimming systems
But that is largely technology transferred to US vessels. Some of the best clean up ships – owned by Belgian, Dutch and the Norwegian firms are NOT being used.
Requests for waivers of certain provisions of the act are reviewed by the United States Maritime Administration on a case by case basis. Waivers have been granted for example, in cases of national emergencies or in cases of strategic interest. For instance, declining oil production prompted MARAD to grant a waiver to operators of the 512-foot Chinese vessel Tai An Kou to tow an oil rig from the Gulf of Mexico to Alaska. The jackup rig will be under a two-year contract to drill in the Alaska’s Cook Inlet Basin. The waiver to the Chinese vessel is said to be the first of its kind granted to an independent oil-and-gas company. In the wake of Hurricane Katrina, Homeland Security Secretary Michael Chertoff temporarily waived the U.S. Shipping Act for foreign vessels carrying oil and Natural gas from September 1 to 19, 2005. There are certain American ports which are exempt from provisions of the Jones Act. They are Guam, American Samoa and the Northern Marianas in the Pacific and the United States Virgin Islands in the Caribbean. There have historically been sufficiently few calls to those ports that requiring American cabotage was assumed to be a hardship. Waivers to the Jones Act were granted by the administration of George W. Bush in the days following hurricane Katrina. Obama said waivers might again be considered.
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