The PVSA is Anachronistic, Counterproductive, and Stupid, and Should be Repealed!

[Hlitner]

I love the OP's post and agree with much of what he says (with all due respect to ChungKP and a few other very knowledgeable CC posters).  That being said, if would likely take legislation approved by both Houses of Congress and singed by President Biden to make any effective changes.  Not only has the Biden administration already indicated they have no interest in changing the "Jones Act" (their words) but we are talking about a Congress that thinks that mandating name changes is all they need to do to impress voters.   Lets be honest here.  Our lawmakers decided to stop a border wall (which many say is ineffective) while they ordered a wall erected around the Capitol for their own protection.  Go figure.  Some of the Congressional members that oppose a wall to protect our country live in walled/gated communities and a few even have walls around their own homes!

 

So we expect these folks to actually work on real legislation that might actually have some meaning?   While I personally support a change (or waiver) in the PVSA to completely eliminate Canada from the equation for Alaska cruises I will not hold my breath for this Congress to even consider such legislation.  By the time they are finished calling each other names it will be time for another election.

 

And for the record I am somewhat of a libertarian and reject most of the pro cabotage laws.  I could care less if the Staten Island Ferry is crewed by Americans or non-Americans (I am no longer allowed to say illegals) as long as it meets appropriate safety rules.  Perhaps a foreign crew would be smart enough not to run the ferry into the pier as happened in 2003 resulting in 11 deaths.  The issues raised about who pays what taxes is easily handled within our tax code and has little to do with what "flag" flies on a ferry.  Protectionism in most forms is bad for business and not good policy.  If a foreign crew sailing between Seattle and an Alaskan port must pay US taxes...then bless them :).  If they do not want to pay the appropriate taxes then they are welcome to seek work elsewhere.  And if cruise lines think that the tax burden resulting from the lack of Cabotage protection is a bridge too far then they are certainly free to avoid those kind of itineraries.  That is called competition!

 

I would agree that some of our cabotage laws (and related labor laws) are outdated and changes might result in some cost increases.  But so be it!  The advantages of not having to deal with the Canadian authorities, the additional cost of flying into Canada, or the hassle of taking a bus from SEATAC to Vancouver would probably make up for lots of the cost.  Bottom line is that the time has come to fix the PVSA Law (130+ years is too long for most laws) and let the chips fall where they may.

 

Hank

 

 

[Turtles06]

3 hours ago, USN59-79 said:

I understand NCL has or had a U.S. flagged and crewed ship Pride of America used for cruising among the Hawaiian Islands.  I wonder if that ship would qualify under the PVSA to cruise this Summer from Seattle to and from Alaska.

From an article here on CC:

 

“But with an American crew, would it be possible to redeploy Pride of America to Seattle to conduct cruise to Alaska, bypassing the need for a stop in the Canadian province of British Columbia?  No: Norwegian tells Cruise Critic that their agreement with the government over Pride of America requires that the ship sail only in Hawaii. Redeploying the vessel to the U.S. mainland is not an option.”

 

https://www.cruisecritic.com/news/5399/

[chengkp75]

5 hours ago, Hlitner said:

I could care less if the Staten Island Ferry is crewed by Americans or non-Americans (I am no longer allowed to say illegals) as long as it meets appropriate safety rules.

Hank;

 

Here is the fly in your ointment.  Since the US is signatory to SOLAS, and I don't think you or anyone would advocate for leaving SOLAS, we are bound by its terms to only hold foreign ships to the safety standards of SOLAS, and to treat all member nations' ships equally.  While SOLAS gives the US, and any member nation, the right to enact stricter safety measures for ships, the nation can only enforce those measures on ships of their flag.  So, if the Staten Island ferry is allowed to be Panamanian flag, then the USCG can only enforce the SOLAS rules, and not the stricter regulations that the USCG feels are appropriate for US flag vessels.  And, as a passenger vessel, under Panamanian flag, the USCG is not mandated to inspect the ferry at all, but may choose to do so under Port State Control authority, along with all other foreign flag ships in NY harbor, as their budget allows.  Conversely, under US flag, the ferry must be inspected every 3 months.

 

And, as for the Staten Island ferry incident that cost 11 lives, I'll offer the Korean ferry sinking that cost 299 lives, the Philippine ferry sinkings that cost 4,341 and 700 lives, the Senegalese ferry sinking that cost 1,863 lives, the Red Sea ferry that cost over 1000 lives,  the Indonesian ferry that cost nearly 500 lives, two Bangladeshi ferries accounting for about 1000 lives, and even one on lake Victoria in Tanzania taking about 1000 lives (the boat was certified for 430).  Those figures that are approximate are because there are no records kept of the number of souls onboard at any time.

Edited February 8, 2021 by chengkp75

[Tampa Girl]

15 hours ago, chengkp75 said:

See my previous post about the PVSA.  It was never, and still isn't about "stifling competition".  It is far more about leveling the playing field for those vessels that are required to incur the added cost of US flag operation, to keep the US waters safer and cleaner.

 

Thank you for your explanation, posted above.  It is most enlightening.

[Hlitner]

3 hours ago, chengkp75 said:

Hank;

 

Here is the fly in your ointment.  Since the US is signatory to SOLAS, and I don't think you or anyone would advocate for leaving SOLAS, we are bound by its terms to only hold foreign ships to the safety standards of SOLAS, and to treat all member nations' ships equally.  While SOLAS gives the US, and any member nation, the right to enact stricter safety measures for ships, the nation can only enforce those measures on ships of their flag.  So, if the Staten Island ferry is allowed to be Panamanian flag, then the USCG can only enforce the SOLAS rules, and not the stricter regulations that the USCG feels are appropriate for US flag vessels.  And, as a passenger vessel, under Panamanian flag, the USCG is not mandated to inspect the ferry at all, but may choose to do so under Port State Control authority, along with all other foreign flag ships in NY harbor, as their budget allows.  Conversely, under US flag, the ferry must be inspected every 3 months.

 

And, as for the Staten Island ferry incident that cost 11 lives, I'll offer the Korean ferry sinking that cost 299 lives, the Philippine ferry sinkings that cost 4,341 and 700 lives, the Senegalese ferry sinking that cost 1,863 lives, the Red Sea ferry that cost over 1000 lives,  the Indonesian ferry that cost nearly 500 lives, two Bangladeshi ferries accounting for about 1000 lives, and even one on lake Victoria in Tanzania taking about 1000 lives (the boat was certified for 430).  Those figures that are approximate are because there are no records kept of the number of souls onboard at any time.

I think you underestimate the ability of regulators to regulate :).   I certainly would not propose allowing the Staten Island or any other ferry in US Waters to be reflagged.  I only brought up the ferry because it was an issue raised by somebody else in another post.  What I am saying is that there are times when a country does what is in its own best interests (in this case it is to amend or possibly waive part of the PVSA).  Despite you cries to the contrary I do not believe the sky will fall with some amendments.  I seem to recall some objections were raised a few years ago when the US Government decided that the FBI would get involved in cases involving US Citizens/Residents even when they happened on foreign flagged vessels operating outside US Waters.  While the ability of the FBI to get involved in cases does technically need the cooperation of the host country (assuming it happened in another countries waters) pressure is brought to bear and the investigation generally happens.  The US simply uses 18US Code as the basis of the FBI's intervention even when that is in technical conflict of certain other Marine laws.  I only mention this because it is a situation where the US Government acted to do what was in our own best interests with the knowledge that it might later cause some complicated situations which would need to be resolved at the time.

 

I think it can be the same with the PVSA.  This has now become a situation where Congress should act to do what is in our best interests, which might be to protect part of Alaska's economy.  If there are some nasty ramifications that will need to be handled through negotiations.   'While you point out that changes could create a problem with our own labor laws (i.e. crews would be subject to US minimum wage and other related labor laws), the same Congress that would amend the PVSA could also (if it chooses) make targeted changes to applicable labor laws.  It happens all the time in our government.  The truth about working in Government regulation (which I did for about forty years in the healthcare sector) is that regulations/statutes are routinely crafted to do what is in our own best interests.   There is another aspect of the PVSA for which I have my doubts.  I am wondering if President Biden (if he chooses) can simply issue an executive order waiving the necessary parts of the PVSA to simply allow cruises directly between the lower 48 and Alaska without any intervening stops.  Presidents (including Biden) routinely use EOs even when they are obviously contrary to law.   The EO takes effect immediately and then others, if they so choose, are welcome to fight it out in the courts which can often take years.  But meanwhile the EO reigns supreme.   In my career I promulgated several regulations (healthcare related) that were contrary to existing statutes but they were adopted pending later court challenges.  It is almost like somebody doing something in their own best interests and then saying, "if you don't like it....sue me."  Such regulations must be carefully crafted to have some basis in law, but this is usually pretty easy for skilled technocrats and attorneys.

 

Hank 

[chengkp75]

Hank;

 

The problem is that if you allow foreign flag cruise ships to operate coastwise, then you have to allow all "passenger" vessels to be foreign and operate coastwise, so the Staten Island ferry could very well apply for Panamanian flag.

 

Your understanding of the FBI's involvement in cases is somewhat incorrect.  Your first sentence is correct, that the FBI has claimed jurisdiction over certain crimes that involve US citizens/residents while in international waters (called "extra-territorial" jurisdiction).  However, when a crime against a US citizen happens in another country's waters or ports, the US can only request "interested party" status, meaning they can "ride along" with the host country's investigators, and receive all information and reports that the host nation generates, but not conduct any investigation of their own, unless the host nation requests it.

 

As was the case when the previous President opted to use Executive Orders as a way to get around Congressional gridlock, there is a lot of misunderstanding about what, and how much, can be done by EO.  As for the PVSA specifically, the law (and you seem to have a pretty elastic idea about laws) states that the only exemptions can be made for national security reasons.

 

I firmly believe that if the President were to make a blanket EO waiving the PVSA, that American Cruise Lines would be in court the next day, asking for an emergency injunction, based on the EO creating unfair competition.  I suspect that while the EO might still be in existence, the injunction would be approved swiftly on the merits of the law, and you would be back to not allowing foreign ships to sail until the court case is decided.

[iceman93]

10 minutes ago, chengkp75 said:

The problem is that if you allow foreign flag cruise ships to operate coastwise, then you have to allow all "passenger" vessels to be foreign and operate coastwise, so the Staten Island ferry could very well apply for Panamanian flag.

 

No, we don't.  There's no reason the law (or regulation, or enforcement) couldn't be amended to have different rules for vessels carrying over 1,000 passengers (for example) than for those with fewer.  It doesn't have to be all or nothing.

[chengkp75]

Just now, iceman93 said:

 

No, we don't.  There's no reason the law (or regulation, or enforcement) couldn't be amended to have different rules for vessels carrying over 1,000 passengers (for example) than for those with fewer.  It doesn't have to be all or nothing.

Well, yes it does.  Since it involves ships of other nations, it becomes an international/maritime law situation, and therefore you have to apply the definition of "passenger vessel" that the international/maritime law uses, and that is "any vessel that carries more than 12 people for hire".  If this were just to make a distinction between sizes of US flag vessels, you are correct, but this is not simply a US legal situation.

[ontheweb]

1 hour ago, chengkp75 said:

Well, yes it does.  Since it involves ships of other nations, it becomes an international/maritime law situation, and therefore you have to apply the definition of "passenger vessel" that the international/maritime law uses, and that is "any vessel that carries more than 12 people for hire".  If this were just to make a distinction between sizes of US flag vessels, you are correct, but this is not simply a US legal situation.

You keep reminding people that there is no magic wand that solves problems, and actions often have unintended consequences.

[nocl]

22 minutes ago, ontheweb said:

You keep reminding people that there is no magic wand that solves problems, and actions often have unintended consequences.

For some reason people tend to think that it is easy to change laws and regulations without understanding that it is really a web of interacting relationships and anytime there is a change it requires agreement, a process to be followed, and a lot of consideration over how the change would make it through challenge in the court system as well as the potential for unintended consequences.

[Mary229]

40 minutes ago, nocl said:

For some reason people tend to think that it is easy to change laws and regulations without understanding that it is really a web of interacting relationships and anytime there is a change it requires agreement, a process to be followed, and a lot of consideration over how the change would make it through challenge in the court system as well as the potential for unintended consequences.

It actually is not that hard.  I recall a situation in Texas where a single newspaper article pointed out that only 25% of the people were paying a certain tax.  It went from 25% compliance to Zip overnight.  The law was repealed. I was one of the 25%, ouch

Edited February 8, 2021 by Mary229

[nocl]

25 minutes ago, Mary229 said:

It actually is not that hard.  I recall a situation in Texas where a single newspaper article pointed out that only 25% of the people were paying a certain tax.  It went from 25% compliance to Zip overnight.  The law was repealed. I was one of the 25%, ouch

Adding or deleting taxes is actually one of the easier things to do.  Not bound by international law, strictly within state limits, pretty much bound only by that states constitution, and maybe in certain cases the US constitution.  A states legislature and governor can pretty much change taxes  anytime they can get a majority to agree. No regulatory process.

 

A single anecdotal example, while of interest, does not make a case that regulations, including ones that involve international agreements are easy to change

[taxmantoo]

[USN59-79]

While I understand and appreciate what chengkp75 has written about the law and why it can't easily be changed or overlooked, here is my problem:  What do we actually gain when a cruise ship stops at Vancouver or Victoria or Ensenada?  If they missed that stop would the cruise line suddenly be liable for huge U.S. taxes?  Or would the crew be suddenly due a raise in pay?  Or would the ship be much less safe because the Mexican or Canadian Coast Guard wouldn't have a chance to inspect her?

I think it is strange that I can board an airplane in Seattle and fly directly to Anchorage but I cannot board a ship that sails directly from Seattle to Anchorage unless it is a U.S. Navy ship.

[Mary229]

3 hours ago, nocl said:

Adding or deleting taxes is actually one of the easier things to do.  Not bound by international law, strictly within state limits, pretty much bound only by that states constitution, and maybe in certain cases the US constitution.  A states legislature and governor can pretty much change taxes  anytime they can get a majority to agree. No regulatory process.

 

A single anecdotal example, while of interest, does not make a case that regulations, including ones that involve international agreements are easy to change

I could quote others but I found that one humorous 

[Shmoo here]

19 minutes ago, USN59-79 said:

I think it is strange that I can board an airplane in Seattle and fly directly to Anchorage but I cannot board a ship that sails directly from Seattle to Anchorage unless it is a U.S. Navy ship.

Well, you can, if the plane is a US registered plane.  You can't get on a plane like KLM, for example and do that from what I understand.  

 

If there were a US flagged ship going from Seattle to Anchorage, it wouldn't have to make the foreign port stop.

[chengkp75]

32 minutes ago, USN59-79 said:

While I understand and appreciate what chengkp75 has written about the law and why it can't easily be changed or overlooked, here is my problem:  What do we actually gain when a cruise ship stops at Vancouver or Victoria or Ensenada?  If they missed that stop would the cruise line suddenly be liable for huge U.S. taxes?  Or would the crew be suddenly due a raise in pay?  Or would the ship be much less safe because the Mexican or Canadian Coast Guard wouldn't have a chance to inspect her?

I think it is strange that I can board an airplane in Seattle and fly directly to Anchorage but I cannot board a ship that sails directly from Seattle to Anchorage unless it is a U.S. Navy ship.

If the ship missed the stop, for reasons within it's control (for example, they just decided to not make the port call, as opposed to weather or mechanical problems), then the ship is in violation of the PVSA, and the company is liable for a fine of about $750/passenger.

 

Further, what we "gain" is that by allowing this, we allow foreign ships to participate in "coastwise" voyages, and this opens every type of passenger voyage in the US (see my descriptions of what vessels are covered by the PVSA above) to be done by foreign flag vessels.  As I've tried to explain, once the factor of another country is involved (in the flag state of the foreign flag cruise ship), you move from strictly US law to international/maritime law, and must address and live with the limits and precedents of that law.

9 minutes ago, Shmoo here said:

Well, you can, if the plane is a US registered plane.  You can't get on a plane like KLM, for example and do that from what I understand.  

 

If there were a US flagged ship going from Seattle to Anchorage, it wouldn't have to make the foreign port stop.

Yep, Alaskan Airways from Seattle to Anchorage is okay, Air Canada is not.  Alaskan Marine Highway ship from Seattle to Anchorage is okay, Princess cruise ship is not.

Edited February 8, 2021 by chengkp75

[Aquahound]

20 hours ago, chengkp75 said:

...then the ship is in violation of the PVSA, and the company is liable for a fine of about $750/passenger.

 

 

...which I've seen cruise lines forward on to passengers, even when the passengers were not at fault.  The worst was when a man died, was debarked with his widow in Key West, and Carnival forwarded the fine to the widow.  Not only that, but she was fined double to include her dead spouse.  It was disgusting. 😡

[chengkp75]

31 minutes ago, Aquahound said:

 

...which I've seen cruise lines forward on to passengers, even when the passengers were not at fault.  The worst was when a man died, was debarked with his widow in Key West, and Carnival forwarded the fine to the widow.  Not only that, but she was fined double to include her dead spouse.  It was disgusting. 😡

Yes, the ticket contract language gives the line the right to pass the fine to the passenger.  I've been on a ship where the widow and deceased were fined for PVSA violation, but the cruise line provided the necessary paperwork for the widow to get the fine refunded due to the death.  It's bad enough that they make the family deal with CBP, but at least the family didn't have to pay anything.

[KirkNC]

The funny thing is even if the proper laws were amended/rescinded/ over ridden what ever there would still not be a 2021 Alaska cruise season as lines still have to comply with the CDC Conditional Sail Order.  We see zero movement from the cruise lines in that regard.

[2inSETexas]

1 hour ago, KirkNC said:

The funny thing is even if the proper laws were amended/rescinded/ over ridden what ever there would still not be a 2021 Alaska cruise season as lines still have to comply with the CDC Conditional Sail Order.  We see zero movement from the cruise lines in that regard.

There has been zero movement because the CDC has failed to give the cruise lines the final requirements so they can apply for the test cruises. This was addressed by the cruise industry last month and confirmed by the CDC last week:

https://www.cruisecritic.com/news/5863/

Edited February 9, 2021 by 2inSETexas
Update link

[KirkNC]

23 minutes ago, 2inSETexas said:

There has been zero movement because the CDC has failed to give the cruise lines the final requirements so they can apply for the test cruises. This was addressed by the cruise industry last month and confirmed by the CDC last week:

https://www.cruisecritic.com/news/5863/

Well that explains the why but the fact remains that until whatever requirements CDC comes up with are clarified and fulfilled, US cruising is at a standstill regardless of what restrictions any other country may put in place.  I find it amazing that 3-4 months have gone by with no movement in this regard.  

[chengkp75]

5 minutes ago, KirkNC said:

Well that explains the why but the fact remains that until whatever requirements CDC comes up with are clarified and fulfilled, US cruising is at a standstill regardless of what restrictions any other country may put in place.  I find it amazing that 3-4 months have gone by with no movement in this regard.  

Could be that the CDC's attention is focused elsewhere.

[KirkNC]

1 hour ago, chengkp75 said:

Could be that the CDC's attention is focused elsewhere.

Understandable but you are talking about an entire industry put on hold.

[richwmn]

1 hour ago, chengkp75 said:

Could be that the CDC's attention is focused elsewhere.

 

10 minutes ago, KirkNC said:

Understandable but you are talking about an entire industry put on hold.

Remember that this, like most government decisions, will be up to a committee.

This is normally defined as:

"A group of people officially delegated to perform a function, such as investigating, considering, reporting, or acting on a matter."

Or alternately defined by Robert Heinlein as

“A committee is a life form with six or more legs and no brain.”