Question for Lawyers re Jones Act

[donaldsc]

I know basically what the Jones Act says - you can not cruise from a US port to a US port without stopping in a foreign port. However, there are a lot of small boat (<100 passenger) cruises that go from port to port in Alaska without stopping at a Canadian port. Seems like this is a violation of the Jones Act.

 

How do they get away with it? Is there an exemption for small ships? Does the fact that the cruises are intrastate cruises exempt them from interstate commerce rules? Does anyone know?

 

DON

[Mary Ellen]

The ships that I've seen doing this are registered in the US. The PVSA prohibits foreign flagged ships from carrying passengers between one US port and another, without a stop in a distant foreign port.

[sail7seas]

Yes,,,,,,

two pertinent points are it is PVSA that applies to passenger vessels and

boats/ships foreign registered are those covered by the act and not U.S.

registered/built vessels.

 

[paul929207]

There are also ships that sail the Mississippi River System. They are also US flagged and therefore legal.

[donaldsc]

All of your responses sound reasonable. However, I wonder if a federal law that covers interstate commerce would also regulate a cruise that departs from, stays within and ends with the same state. Because this is totally intrastate commerce, would federal law apply? I have no idea.

 

DON

[sail7seas]

Don't U.S. federal laws rule over state?

ie Medicinal and Recreational use of marijuana is legal is some states but still against Federal law.

Edited July 10, 2015 by sail7seas

[CantanaLobo]

All of your responses sound reasonable. However, I wonder if a federal law that covers interstate commerce would also regulate a cruise that departs from, stays within and ends with the same state. Because this is totally intrastate commerce, would federal law apply? I have no idea.

 

DON

Me neither (INAL). States and cities do not have the foreign affairs power, that's vested in the federal government. I'd think that would give the feds preemption over anything the states did with regards to foreign ships.

[chengkp75]

All of your responses sound reasonable. However, I wonder if a federal law that covers interstate commerce would also regulate a cruise that departs from, stays within and ends with the same state. Because this is totally intrastate commerce, would federal law apply? I have no idea.

 

DON

 

As an example, the Pride of Aloha sails exclusively within the state of Hawaii. It must be US flag.

 

Carriage of passengers (PVSA) and cargo (Jones Act) from one US port to another, regardless of whether the ports are in the same state or not, are considered "coastwise" traffic, and therefore come under US federal jurisdiction.

 

Any vessel above a certain tonnage, or certain passenger capacity, that engages in coastwise traffic, must be registered with the USCG, and therefore be US flag. Even charter fishing boats must have US licensed masters (the so-called "six pack" license, allowing carriage of 6 passengers).

 

As stated above, both the Jones Act and the PVSA restrict coastwise commerce to US flag ships, which means that foreign flag ships must make a "foreign" voyage, calling at one foreign port.

Edited July 11, 2015 by chengkp75

[BruceMuzz]

All of your responses sound reasonable. However, I wonder if a federal law that covers interstate commerce would also regulate a cruise that departs from, stays within and ends with the same state. Because this is totally intrastate commerce, would federal law apply? I have no idea.

 

DON

 

If a cruise ship wants to make a profit, several things must happen:

 

They must be able to purchase duty free alcohol, then re-sell it to passengers.

They must be able to purchase duty free goods and re-sell them onboard.

They need to operate a casino.

They need to burn regular bunker fuel.

 

To do any/all of these things, they need to sail outside the territorial waters of the USA.

Sailing outside the USA automatically becomes an international voyage.

On an international voyage, Federal Laws apply.

 

And possibly even more important, a cruise ship has limited storage space for waste water.

Even processed waste water usually must be pumped overboard outside the 12 mile limit. If you want the toilets to work for more than 2 or 3 days, you either go international - or you pay an absolute fortune to have the tanks pumped out in port.

Edited July 11, 2015 by BruceMuzz

[chengkp75]

If a cruise ship wants to make a profit, several things must happen:

 

They must be able to purchase duty free alcohol, then re-sell it to passengers.

They must be able to purchase duty free goods and re-sell them onboard.

They need to operate a casino.

They need to burn regular bunker fuel.

 

To do any/all of these things, they need to sail outside the territorial waters of the USA.

Sailing outside the USA automatically becomes an international voyage.

On an international voyage, Federal Laws apply.

 

And possibly even more important, a cruise ship has limited storage space for waste water.

Even processed waste water usually must be pumped overboard outside the 12 mile limit. If you want the toilets to work for more than 2 or 3 days, you either go international - or you pay an absolute fortune to have the tanks pumped out in port.

 

Actually, that is not quite correct. A ship sailing from Galveston to New Orleans goes outside the 12 mile limit, but is not on an international voyage. It is a coastwise voyage. As I've stated, the POA goes outside the 12 mile limit, and this is not even a coatwise voyage, it is an intra-state voyage. The now banned cruises to nowhere, went outside the 12 mile limit, but were not international voyages. Many US flag casino boats go outside the 12 mile limit in order open the casino, but they are not on an international voyage, they don't require to clear customs on arrival.

 

An international voyage, by definition is "inter" (or between) nations. An international voyage must call at ports in more than one country.

[sparks1093]

If a cruise ship wants to make a profit, several things must happen:

 

They must be able to purchase duty free alcohol, then re-sell it to passengers.

They must be able to purchase duty free goods and re-sell them onboard.

They need to operate a casino.

They need to burn regular bunker fuel.

 

To do any/all of these things, they need to sail outside the territorial waters of the USA.

Sailing outside the USA automatically becomes an international voyage.

On an international voyage, Federal Laws apply.

 

And possibly even more important, a cruise ship has limited storage space for waste water.

Even processed waste water usually must be pumped overboard outside the 12 mile limit. If you want the toilets to work for more than 2 or 3 days, you either go international - or you pay an absolute fortune to have the tanks pumped out in port.

 

It's always been my understanding that in order to qualify for duty free the buyer must be purchasing it for their own use or as a gift, the buyer cannot purchase the item with the intent to resell it. Is that not correct?

Edited July 11, 2015 by sparks1093

[chengkp75]

It's always been my understanding that in order to qualify for duty free the buyer must be purchasing it for their own use or as a gift, the buyer cannot purchase the item with the intent to resell it. Is that not correct?

 

While I will quibble with some of Bruce's "requirements" to make a profit, all of the liquor bought by the ship is "duty free", though the exact term is "out of bond". Since the ship is "foreign territory", it is not subject to US or state liquor taxes. However, all drinks sold while in port must be rung up (internally, the guest doesn't see any difference, except perhaps sales tax) separately, so that duty is paid on that amount of alcohol. Some lines, in some places (like Texas), simply limit the amount and types of alcohol that can be served in port to simplify the accounting. Even US flag ships that purchase alcohol and cigarettes for use on international voyages can buy "out of bond". Unfortunately, the Pride of America, which never leaves the state of Hawaii, must buy its alcohol with the state tax seals.

 

The same goes for the "duty free" goods in the shops. The ship (concessionaire) buys "out of bond" and sells them "duty free".

Edited July 11, 2015 by chengkp75

[zqvol]

While I will quibble with some of Bruce's "requirements" to make a profit, all of the liquor bought by the ship is "duty free", though the exact term is "out of bond". Since the ship is "foreign territory", it is not subject to US or state liquor taxes. However, all drinks sold while in port must be rung up (internally, the guest doesn't see any difference, except perhaps sales tax) separately, so that duty is paid on that amount of alcohol. Some lines, in some places (like Texas), simply limit the amount and types of alcohol that can be served in port to simplify the accounting. Even US flag ships that purchase alcohol and cigarettes for use on international voyages can buy "out of bond". Unfortunately, the Pride of America, which never leaves the state of Hawaii, must buy its alcohol with the state tax seals.

 

The same goes for the "duty free" goods in the shops. The ship (concessionaire) buys "out of bond" and sells them "duty free".

 

 

Just wanted to let you know that I really enjoy your accurate descriptions and explanations of how things really are on board cruise ships.

[Husky61]

I wonder how many of the responses were from Maritime Attorneys?;)

[BruceMuzz]

I wonder how many of the responses were from Maritime Attorneys?;)

 

You COULD get a Maritime Attorney to respond here - but you would have to pay him a lot of money first.

 

Even if he did respond, his advice would not be worth very much.

The US Coast Guard and US CBP both a history of some very creative interpretations of the PVSA, depending on which way the wind is blowing and what they had for breakfast. The interpretations range from sublime to ridiculous. Since they have final word on the subject, a maritime lawyer's advice or opinion has very little bearing here.

Edited July 11, 2015 by BruceMuzz

[Husky61]

You COULD get a Maritime Attorney to respond here - but you would have to pay him a lot of money first.

 

I agree, I just thought it amusing that the OP asked for input from lawyers and received input from non-lawyers, or at least none who claimed to be an attorney.:)

[sail7seas]

.... ;) or her. :D

(as to paying a Maritime Attorney to respond here on CC. :))

 

 

 

I agree, I just thought it amusing that the OP asked for input from lawyers and received input from non-lawyers, or at least none who claimed to be an attorney.

 

 

There are actually people who work on the ships and have for years who know as much (if not more) than many an attorney. OP didn't specify Maritime Attorney which might have been more specific in their knowledge. A response for a real estate attorney or tax attorney wouldn't have nearly the value of people who are in positions on the ships who deal with this in their careers.

Edited July 11, 2015 by sail7seas

[Husky61]

Y

 

Even if he did respond, his advice would not be worth very much.

 

Of course not, what does a Maritime Attorney know about the Jones act.:rolleyes:

 

The experts on this forum are much more knowledgeable about the Jones act than a maritime attorney.:eek:

[BruceMuzz]

There was a really bizarre event - related to this question - that occurred in Vancouver BC last week.

 

Since so many people board cruise ships in Vancouver, bound for Alaska, the Canadian government agreed that the USA could station US CBP Officers at Canada Place Terminal in Vancouver, for the purpose of pre-clearing passengers into the first US Port.

 

This allows cruise ships sailing the inside passage between Vancouver, Canada and Juneau, Alaska - for example - to be quickly cleared into Juneau without all the pax going through US Immigration (first US port of call) before going ashore. The cruise lines and the local Alaska merchants and tour operators love this as it allows them to make far more money with the additional time the passengers can spend ashore in the first US Port.

 

Last week (on Canada Day), a group of Health Canada Officers (Canada's version of US Public Health Service) attempted to board a Princess ship at Canada Place in order to make a surprise Health Inspection. US CBP Officers stopped them at the gangway and informed them that since the Princess ship was next going to a US Port, and the Canadian Federal Officers had not cleared US Immigration in the Terminal, they were prohibited from boarding the ship to make the inspection. The US Officers claimed that the Canadian Officers leaving the pier (Canada) and boarding a Princess ship (Bermuda), that was sailing to Juneau (America) - without clearing the US Immigration pre-clearance - was not legal according to US law (even though they were in Canada).

 

Both groups knew that the Canadian Officers had no intention to sail with the ship. They were going onboard to make their normal 4 - 5 hour surprise health inspection, then disembark and go back to their office in Vancouver. It was also probably safe to assume that these Canadian Government Officials had no intention of sneaking into America on a Princess ship.

 

But the US Officers decided that they were going to flex their legal muscles and prevent this from happening. So the US Government Officials - working in Canada - were telling Canadian Government Officials what they could and could not do in their own country - on Canada's Independence Day. The exchanges became rather heated, as you might imagine. The US Officers were carrying guns; the Canadian Officers were not. In the end the Canadians backed down and cancelled the inspection.

The cruise lines and the city of Vancouver were very alarmed. This situation could lead to cruise lines pulling out of Vancouver and sailing from Seattle instead.

 

So now, every cruise ship that calls at Vancouver must have all the Health Canada Inspectors' names on their Visitor list and Port Security list every week, just in case Health Canada wants to make a surprise inspection in their own country. With this setup, US CBP will allow them to visit a ship to make a Health Inspection - without going through US Immigration pre-clearance procedures.

 

This story would have a Maritime Lawyer shaking his head in disbelief and bewilderment.

Edited July 11, 2015 by BruceMuzz

[RuthC]

Of course not, what does a Maritime Attorney know about the Jones act.:rolleyes:

(S)he would know that the Jones Act doesn't apply to cruisers.

[Waynetor]

I find that story in Vancouver very interesting. I wonder if airport crew loading/cleaning airplanes going from Canada to the US could be stopped from servicing a plane without clearing immigration.

[BeagleOne]

 

US CBP Officers stopped them at the gangway and informed them that since the Princess ship was next going to a US Port, and the Canadian Federal Officers had not cleared US Immigration in the Terminal, they were prohibited from boarding the ship to make the inspection.

 

Wow, Bruce, that's amazingly stupid on the part of the US CBP officers. Any idea why they did that, apart from machismo?

[BillB48]

I find that story in Vancouver very interesting. I wonder if airport crew loading/cleaning airplanes going from Canada to the US could be stopped from servicing a plane without clearing immigration.

 

A few years ago when I flew back from Toronto to Atlanta they had a similar operation at Pearson... After you went through the gate agent there was US Immigration to take your Customs Declaration. So when the plane left YYZ there was no other delay at the Atlanta end. I would think the "legal" status of the aircraft (or ship) would change when boarding starts.

 

In short you can never underestimate what a little power can do to little people. The bureaucratic spat could have started on the spot for a number of reasons or stems from something else that the US and Canadian agencies could not agree on. Either way... not good.

[GUT2407]

Of course not, what does a Maritime Attorney know about the Jones act.:rolleyes:

 

The experts on this forum are much more knowledgeable about the Jones act than a maritime attorney.:eek:

 

 

At least a Maritime Attorney knows that it's not the Jones Act.

 

Boy even a dumb little Barrister from Aus [who mainly practices in Wills and Estates, Family Law and Crime] knows that.

[GUT2407]

There was a really bizarre event - related to this question - that occurred in Vancouver BC last week.

 

Since so many people board cruise ships in Vancouver, bound for Alaska, the Canadian government agreed that the USA could station US CBP Officers at Canada Place Terminal in Vancouver, for the purpose of pre-clearing passengers into the first US Port.

 

This allows cruise ships sailing the inside passage between Vancouver, Canada and Juneau, Alaska - for example - to be quickly cleared into Juneau without all the pax going through US Immigration (first US port of call) before going ashore. The cruise lines and the local Alaska merchants and tour operators love this as it allows them to make far more money with the additional time the passengers can spend ashore in the first US Port.

 

Last week (on Canada Day), a group of Health Canada Officers (Canada's version of US Public Health Service) attempted to board a Princess ship at Canada Place in order to make a surprise Health Inspection. US CBP Officers stopped them at the gangway and informed them that since the Princess ship was next going to a US Port, and the Canadian Federal Officers had not cleared US Immigration in the Terminal, they were prohibited from boarding the ship to make the inspection. The US Officers claimed that the Canadian Officers leaving the pier (Canada) and boarding a Princess ship (Bermuda), that was sailing to Juneau (America) - without clearing the US Immigration pre-clearance - was not legal according to US law (even though they were in Canada).

 

Both groups knew that the Canadian Officers had no intention to sail with the ship. They were going onboard to make their normal 4 - 5 hour surprise health inspection, then disembark and go back to their office in Vancouver. It was also probably safe to assume that these Canadian Government Officials had no intention of sneaking into America on a Princess ship.

 

But the US Officers decided that they were going to flex their legal muscles and prevent this from happening. So the US Government Officials - working in Canada - were telling Canadian Government Officials what they could and could not do in their own country - on Canada's Independence Day. The exchanges became rather heated, as you might imagine. The US Officers were carrying guns; the Canadian Officers were not. In the end the Canadians backed down and cancelled the inspection.

The cruise lines and the city of Vancouver were very alarmed. This situation could lead to cruise lines pulling out of Vancouver and sailing from Seattle instead.

 

So now, every cruise ship that calls at Vancouver must have all the Health Canada Inspectors' names on their Visitor list and Port Security list every week, just in case Health Canada wants to make a surprise inspection in their own country. With this setup, US CBP will allow them to visit a ship to make a Health Inspection - without going through US Immigration pre-clearance procedures.

 

This story would have a Maritime Lawyer shaking his head in disbelief and bewilderment.

 

 

I wonder how long USA wll be allowed to have their officers in Vancouver if they want to play that sort of game.