Canada extends ban.....we need US options!

[mo&fran]

This debate has been going on since long before the pandemic, and will probably not end , even if things get back to normal. 

[chengkp75]

Both the Jones Act and the PVSA share many sections of the USC, including 46 USC 501 which covers waivers.  In the past, any request from the Secretary of Defense for a waiver had to be granted, if it used the term "national security" as the reason.  The new National Defense Authorization bill passed by Congress in January, changes that section of 46USC501 to require that the requested waiver also show that it is in "direct support of active military operations".  This further limits the ability of the Executive branch in granting Jones Act/PVSA waivers.

[PaulMCO]

On 2/22/2021 at 8:29 AM, chengkp75 said:

Both the Jones Act and the PVSA share many sections of the USC, including 46 USC 501 which covers waivers.  In the past, any request from the Secretary of Defense for a waiver had to be granted, if it used the term "national security" as the reason.  The new National Defense Authorization bill passed by Congress in January, changes that section of 46USC501 to require that the requested waiver also show that it is in "direct support of active military operations".  This further limits the ability of the Executive branch in granting Jones Act/PVSA waivers.

Question for the expert.   Canada closed its waters to cruise ships.   Can a large Cruise Ship navigate out of Seattle without traversing Canadian waters.

[pinotlover]

26 minutes ago, PaulMCO said:

Question for the expert.   Canada closed its waters to cruise ships.   Can a large Cruise Ship navigate out of Seattle without traversing Canadian waters.

We’ll await his reply, but didn’t he once write the ships can sail into Seattle within US waters, but they couldn’t sail out without going into Canadian waters.

[Tranquility Base]

Princess has just cancelled various 2021 Alaska and Vancouver cruises.

[chengkp75]

1 hour ago, PaulMCO said:

Question for the expert.   Canada closed its waters to cruise ships.   Can a large Cruise Ship navigate out of Seattle without traversing Canadian waters.

 

1 hour ago, pinotlover said:

We’ll await his reply, but didn’t he once write the ships can sail into Seattle within US waters, but they couldn’t sail out without going into Canadian waters.

While it is true that the inbound traffic lane in the Straits of Juan de Fuca is in US waters, and the outbound lane is in Canadian waters, because this is an internationally recognized traffic separation scheme, the ship, if merely transiting, is allowed.  

 

What the prohibition on "entering Canadian waters" means is that before a ship enters Canadian waters to transit to a port in Canada, it must request "clearance".  If that clearance is not given, then the ship is not allowed into Canadian waters, unless she is in transit to another destination outside Canada.  The difference between not allowing ships into Canadian waters, and not allowing them to dock at a port, is just that simple, by not allowing them to "clear" into Canada, the ship cannot stop anywhere in Canadian waters (anchored, dynamically positioned, docked), it is only allowed to transit.  In the cruise community, this means the ship could not "anchor" in Canada and "get the paperwork signed".

Edited February 24, 2021 by chengkp75

[PaulMCO]

2 hours ago, chengkp75 said:

 

While it is true that the inbound traffic lane in the Straits of Juan de Fuca is in US waters, and the outbound lane is in Canadian waters, because this is an internationally recognized traffic separation scheme, the ship, if merely transiting, is allowed.  

 

What the prohibition on "entering Canadian waters" means is that before a ship enters Canadian waters to transit to a port in Canada, it must request "clearance".  If that clearance is not given, then the ship is not allowed into Canadian waters, unless she is in transit to another destination outside Canada.  The difference between not allowing ships into Canadian waters, and not allowing them to dock at a port, is just that simple, by not allowing them to "clear" into Canada, the ship cannot stop anywhere in Canadian waters (anchored, dynamically positioned, docked), it is only allowed to transit.  In the cruise community, this means the ship could not "anchor" in Canada and "get the paperwork signed".

Understand -- but the language of the MOT was specific stating:

"Cruise vessels carrying more than 100 people are still prohibited from operating in Canadian waters...... Cruise vessels in Canadian waters pose a risk to our health care systems."

[chengkp75]

12 minutes ago, PaulMCO said:

Understand -- but the language of the MOT was specific stating:

"Cruise vessels carrying more than 100 people are still prohibited from operating in Canadian waters...... Cruise vessels in Canadian waters pose a risk to our health care systems."

While this is true, the concept of "unrestricted free navigation" is an almost universally accepted practice.  A cargo ship that leaves Seattle does not "clear" into Canadian waters, even though it is in Canadian waters, as long as it is merely transiting.  Someone posted on another thread that the MOT stated that certain waters, that are totally within Canadian waters, the Inside Passage, the Great Lakes, and the St. Lawrence Seaway and river being specifically mentioned, are not subject to the ban, if the vessel is merely transiting Canadian waters.

[broberts]

1 hour ago, PaulMCO said:

Understand -- but the language of the MOT was specific stating:

"Cruise vessels carrying more than 100 people are still prohibited from operating in Canadian waters...... Cruise vessels in Canadian waters pose a risk to our health care systems."

 

Regardless of the language, the Canadian government is unlikely to obstruct international shipping, and especially unlikely to interfere with normal commercial operations of it's closest ally.

[pinotlover]

1 hour ago, broberts said:

 

Regardless of the language, the Canadian government is unlikely to obstruct international shipping, and especially unlikely to interfere with normal commercial operations of it's closest ally.

When Trudeau says that, we’ll take it to the bank. Until then, wait and see.

[PaulMCO]

21 hours ago, broberts said:

 

Regardless of the language, the Canadian government is unlikely to obstruct international shipping, and especially unlikely to interfere with normal commercial operations of it's closest ally.

Shipping and cruise passengers are two different things.  I highly doubt that PVSA will gain any exemption especially considering the current administration's policies, so the point is moot for 99.9% of cruises.

[chengkp75]

22 hours ago, broberts said:

 

Regardless of the language, the Canadian government is unlikely to obstruct international shipping, and especially unlikely to interfere with normal commercial operations of it's closest ally.

 

58 minutes ago, PaulMCO said:

Shipping and cruise passengers are two different things.  I highly doubt that PVSA will gain any exemption especially considering the current administration's policies, so the point is moot for 99.9% of cruises.

First off, in maritime law, cargo shipping and cruise passengers are exactly the same.  We used to refer to passengers as "the cargo that can talk back".  I think you are both arguing the same thing, that Canada will not interfere with cruise ships transiting Canadian waters, in accord with maritime law, but they have banned cruise ships from stopping in Canadian waters.

Edited February 25, 2021 by chengkp75

[Daniel A]

On 2/25/2021 at 6:22 PM, chengkp75 said:

I think you are both arguing the same thing, that Canada will not interfere with cruise ships transiting Canadian waters, in accord with maritime law, but they have banned cruise ships from stopping in Canadian waters.

That is not what Transport Canada has said.  Quote: " Today, the Minister of Transport, the Honourable Omar Alghabra, announced two new Interim Orders, which prohibit pleasure craft in Canadian Arctic waters and cruise vessels in all Canadian waters until February 28, 2022.  This means: . . . Cruise vessels carrying more than 100 people are still prohibited from operating in Canadian waters.. . .Cruise vessels in Canadian waters pose a risk to our health care systems. "  

 

See:  Government of Canada announces one-year ban for pleasure craft and cruise vessels  - Canada.ca

 

 

[broberts]

18 minutes ago, Daniel A said:

That is not what Transport Canada has said.  Quote: " Today, the Minister of Transport, the Honourable Omar Alghabra, announced two new Interim Orders, which prohibit pleasure craft in Canadian Arctic waters and cruise vessels in all Canadian waters until February 28, 2022.  This means: . . . Cruise vessels carrying more than 100 people are still prohibited from operating in Canadian waters.. . .Cruise vessels in Canadian waters pose a risk to our health care systems. "  

 

See:  Government of Canada announces one-year ban for pleasure craft and cruise vessels  - Canada.ca

 

 

 

That is the wording of the news release. If you read the actual order you will find among other exclusions:" (e) a foreign vessel in the territorial sea of Canada that is exercising the right of innocent passage in accordance with international law and article 19 of the United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982; and". Which I suspect allows cruise ships to transit Canadian waters. Someone more familiar with maritime law please correct me if I'm wrong.

Edited February 27, 2021 by broberts

[chengkp75]

12 minutes ago, Daniel A said:

That is not what Transport Canada has said.  Quote: " Today, the Minister of Transport, the Honourable Omar Alghabra, announced two new Interim Orders, which prohibit pleasure craft in Canadian Arctic waters and cruise vessels in all Canadian waters until February 28, 2022.  This means: . . . Cruise vessels carrying more than 100 people are still prohibited from operating in Canadian waters.. . .Cruise vessels in Canadian waters pose a risk to our health care systems. "  

 

See:  Government of Canada announces one-year ban for pleasure craft and cruise vessels  - Canada.ca

 

 

Well, then Transport Canada is in direct violation of their own laws, since Canada is signatory to the United Nations Convention of the Law of the Sea (UNCLOS).  As a signatory nation, each member is required to pass "enabling legislation" that codifies the language of the Convention into the law of the member nation.

From the Maritime Executive, article on "innocent passage"

 

"The United Nations Convention on the Law of the Sea (UNCLOS) enshrines the concept of innocent passage through a coastal state’s territorial sea. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. A vessel in innocent passage may traverse the coastal state’s territorial sea continuously and expeditiously, not stopping or anchoring except in force majeure situations."

 

From Oxford Public International Law:

 

"Innocent passage shall not be hampered by the coastal State. In particular, the coastal State shall not (a) impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage "

 

Thanks to broberts who posted while I was researching, and this supports the "innocent passage" exemption.  UNCLOS lists a number of activities that a ship on an "innocent" passage may not engage in without losing it's right to "innocent passage", but any ship that merely transits a nation's territorial waters (note that Canada considers the NW Passage to be "inland" waters, and therefore not subject to "innocent passage"), must be granted "innocent passage" unless they prove otherwise.

[Daniel A]

16 minutes ago, chengkp75 said:

"The United Nations Convention on the Law of the Sea (UNCLOS) enshrines the concept of innocent passage through a coastal state’s territorial sea. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal state. A vessel in innocent passage may traverse the coastal state’s territorial sea continuously and expeditiously, not stopping or anchoring except in force majeure situations."

 

From Oxford Public International Law:

 

"Innocent passage shall not be hampered by the coastal State. In particular, the coastal State shall not (a) impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage "

 

Thanks to broberts who posted while I was researching, and this supports the "innocent passage" exemption.  UNCLOS lists a number of activities that a ship on an "innocent" passage may not engage in without losing it's right to "innocent passage", but any ship that merely transits a nation's territorial waters (note that Canada considers the NW Passage to be "inland" waters, and therefore not subject to "innocent passage"), must be granted "innocent passage" unless they prove otherwise.

As usual a very informative post.  Do you think that the Minister of Transport's statement that "Cruise vessels in Canadian waters pose a risk to our health care systems." is setting the stage for a legal argument  that such passage would be prejudicial to the good order or security of Canada?  After all, fears of the Covid crises overwhelming the hospitals in the US became legal grounds for restricting and negating the civil rights and free passage of Americans within their own country.  I'm not trying to stake out a position here, but Canada seems to be speaking out of two sides of their mouth.  (How unusual for political figures!  🙄)  Since the CDC is not permitting cruise ship operations anyway, this is probably a moot point.

Edited February 27, 2021 by Daniel A

[broberts]

36 minutes ago, Daniel A said:

As usual a very informative post.  Do you think that the Minister of Transport's statement that "Cruise vessels in Canadian waters pose a risk to our health care systems." is setting the stage for a legal argument  that such passage would be prejudicial to the good order or security of Canada?  After all, fears of the Covid crises overwhelming the hospitals in the US became legal grounds for restricting and negating the civil rights and free passage of Americans within their own country.  I'm not trying to stake out a position here, but Canada seems to be speaking out of two sides of their mouth.  (How unusual for political figures!  🙄)  Since the CDC is not permitting cruise ship operations anyway, this is probably a moot point.

 

Absent treaty and permission, no foreign national has a right to free passage in territory of another country. As the order states, transiting (I use the word loosely) vessels are permitted, as prescribed by treaty. So I fail to see your point.

[chengkp75]

45 minutes ago, Daniel A said:

As usual a very informative post.  Do you think that the Minister of Transport's statement that "Cruise vessels in Canadian waters pose a risk to our health care systems." is setting the stage for a legal argument  that such passage would be prejudicial to the good order or security of Canada?  After all, fears of the Covid crises overwhelming the hospitals in the US became legal grounds for restricting and negating the civil rights and free passage of Americans within their own country.  I'm not trying to stake out a position here, but Canada seems to be speaking out of two sides of their mouth.  (How unusual for political figures!  🙄)  Since the CDC is not permitting cruise ship operations anyway, this is probably a moot point.

No, I think that the press statement is, as usual for a politician, not exact in language, or shortened for the "sound bite", but if the actual order is as broberts quotes, then they really don't have a leg to stand on.  And, as I said, UNCLOS is pretty specific about what are "non-innocent" acts, and merely passing through the waters, with an unarmed passenger ship is not one of them.  As for state to state lockdowns and quarantines, these deal with the laws and rights of people within those jurisdictions.  The "innocent passage" concept of UNCLOS is international, so it in effect supersedes even national law.

[pinotlover]

Maybe not so moot. For a couple of years we lived in Youngstown, NY which lies right on the mouth of the Niagara River where it enters Lake Ontario . Niagara on the Lake, Ontario was directly across the River. Our sailboat was moored in the River. 
 

Pursuant to this would our tacks in and out of the River be limited? Could we only take a right turn and sail west in the  Lake, because anything east was claimed by Canada? How silly will the Canadians get with this?

 

I suppose this means the Canadians are shutting down the Canal for transit of pleasure boats between Lake Erie and Canada?

[chengkp75]

5 minutes ago, pinotlover said:

Maybe not so moot. For a couple of years we lived in Youngstown, NY which lies right on the mouth of the Niagara River where it enters Lake Ontario . Niagara on the Lake, Ontario was directly across the River. Our sailboat was moored in the River. 
 

Pursuant to this would our tacks in and out of the River be limited? Could we only take a right turn and sail west in the  Lake, because anything east was claimed by Canada? How silly will the Canadians get with this?

 

I suppose this means the Canadians are shutting down the Canal for transit of pleasure boats between Lake Erie and Canada?

Well, your boat was not a passenger vessel, and the waters of the Great Lakes are exempt from this cruise ship ban, anyway.  But, whenever you tacked into Canadian waters you did become subject to Canadian boating safety regulations.

[Daniel A]

13 minutes ago, broberts said:

 

Absent treaty and permission, no foreign national has a right to free passage in territory of another country. As the order states, transiting (I use the word loosely) vessels are permitted, as prescribed by treaty. So I fail to see your point.

My original point was that the Minister of Transport has stated otherwise in his official capacity.  He was very specific that it prohibits cruise ships in 'all waters' and further states "Cruise vessels carrying more than 100 people are still prohibited from operating in Canadian waters."  So, which is it?  What the minister says or what he signs?  (rhetorical questions)  Maybe the Minister didn't understand the order he was signing.  I'm glad you brought up the wording of the actual order, but maybe it should be brought to the attention of the Minister.  This only serves to muddy the waters even further.  I'm not pushing one point over another, I was merely pointing out that what was originally written was contradicted by your Minister of Transport.  That was my point.  Again, I will state that since the CDC is not permitting cruise ship operations anyway, this is probably a moot point.

[chengkp75]

It is, of course, what they sign.  I can't tell you how many times both government officials and elected officials have quoted a law in a way that bears no resemblance to the written word.  The cruise lines' admiralty lawyers know which is which.

[Daniel A]

4 minutes ago, chengkp75 said:

It is, of course, what they sign.  I can't tell you how many times both government officials and elected officials have quoted a law in a way that bears no resemblance to the written word.  The cruise lines' admiralty lawyers know which is which.

I've seen judges in the US do it all the time.  😕 

[broberts]

1 hour ago, Daniel A said:

My original point was that the Minister of Transport has stated otherwise in his official capacity.  He was very specific that it prohibits cruise ships in 'all waters' and further states "Cruise vessels carrying more than 100 people are still prohibited from operating in Canadian waters."  So, which is it?  What the minister says or what he signs?  (rhetorical questions)  Maybe the Minister didn't understand the order he was signing.  I'm glad you brought up the wording of the actual order, but maybe it should be brought to the attention of the Minister.  This only serves to muddy the waters even further.  I'm not pushing one point over another, I was merely pointing out that what was originally written was contradicted by your Minister of Transport.  That was my point.  Again, I will state that since the CDC is not permitting cruise ship operations anyway, this is probably a moot point.

 

You are taking a press release as the order signed by the minister. The only quote from the minister simply mentions the prohibitions in very general terms. He does not mention vessel sizes, berths, etc. I don't know why you are hung up on this. There is no confusion beyond unsupported assumptions some readers may make. What the minister said officially is the signed order. What his media people wrote is the equivalent of an executive summary. Do you really expect a press release to say "Cruise vessels carrying more than 100 people are still prohibited from operating in Canadian waters excepting vessels in distress, forced by danger, conducting authorized research, carrying government officials or law enforcement carrying out their duties, transiting under treaty, or not operating." Given that these exceptions are fairly standard it seems rather pointless. Besides, anyone interested in details can read the order for themselves.

 

https://tc.canada.ca/en/initiatives/covid-19-measures-updates-guidance-issued-transport-canada/covid-19-measures-updates-guidance-marine-transportation-issued-transport-canada#toc2-1

Edited February 27, 2021 by broberts

[Daniel A]

58 minutes ago, broberts said:

 

You are taking a press release as the order signed by the minister. The only quote from the minister simply mentions the prohibitions in very general terms. He does not mention vessel sizes, berths, etc. I don't know why you are hung up on this. There is no confusion beyond unsupported assumptions some readers may make. What the minister said officially is the signed order. What his media people wrote is the equivalent of an executive summary. Do you really expect a press release to say "Cruise vessels carrying more than 100 people are still prohibited from operating in Canadian waters excepting vessels in distress, forced by danger, conducting authorized research, carrying government officials or law enforcement carrying out their duties, transiting under treaty, or not operating." Given that these exceptions are fairly standard it seems rather pointless. Besides, anyone interested in details can read the order for themselves.

 

https://tc.canada.ca/en/initiatives/covid-19-measures-updates-guidance-issued-transport-canada/covid-19-measures-updates-guidance-marine-transportation-issued-transport-canada#toc2-1

How would an honest statement like "Cruise vessels are banned from stopping at any ports in Canada."  That would more succinct wouldn't it?  And if your interpretation is correct (which it sounds likely that it is...) Why would he permit his office to release contradictory information?  I used to do press releases for a government agency and they were checked and double checked for accuracy before being sent out.  The average person relies on the accuracy of press releases and doesn't read the text of international treaties.  As far as executive summaries go, if I wrote one which was contradicted by the facts of a document, I would have been picking lettuce for a living after that.  I'm not 'hung up' on this, I am only looking for the truth and who and what to believe.  It's a pretty poorly executed government initiative when a government agency needs to be corrected by an anonymous person on the internet.