With Canada now closed to cruises until 2022 is now the time to repeal Jones’ Law?

[chengkp75]

6 hours ago, Hlitner said:

So lets consider what happens if a President waives the "distant foreign port" requirement in the PVSA.  Who is going to have "standing" to go to court?

I was going to list them all, but instead I'll link some:

 

Ferry operators:  https://www.ferrylines.com/en/operators/america-north/ (mixed US and Canadian)

 

Add in any water taxi operator, commuter boat operator, casino boat operator, dinner cruise operator, launch services, pilot boats in many large ports, sight seeing boat operators (including duck boats), whale watching boat operators, large charter fishing boat operators,  and anyone who operates a boat that carries more than 12 passengers, in any coastal, riverfront, or lakefront town or city in the US.

 

As for "various labor unions" being happy, lets add in the US maritime labor unions that would not be happy, and the class action of all the non-union crew of the various vessels named above that would stand to lose their jobs.

Edited February 13, 2021 by chengkp75

[ontheweb]

12 hours ago, Hlitner said:

 

Of course this all assumes that the CDC and the cruise industry can work out their differences and find a way to cruise safely.

 

 

That is a rather large assumption that in effect makes this whole discussion moot.

[Hlitner]

2 hours ago, ontheweb said:

That is a rather large assumption that in effect makes this whole discussion moot.

So true.  If ships do not get a green light certificate from the CDC there will be no cruises.  And so are, not only have no ships been granted approval but it does not seem that any reviews are even in the pipeline.

 

Hank

[chengkp75]

Just now, Hlitner said:

So true.  If ships do not get a green light certificate from the CDC there will be no cruises.  And so are, not only have no ships been granted approval but it does not seem that any reviews are even in the pipeline.

 

Hank

According to the CDC, they have not issued the "technical instructions" for the next phase of the "framework for conditional sailing", which is for the cruise lines to get agreements with local port authorities, and local health care systems to set up transportation, treatment, and quarantine facilities in all the ports the ship will call at.  I see this as a major hurdle, both getting CDC's attention away from the country's condition as a whole and the vaccine roll out problems, and in getting these agreements in place.  While the cruise lines are quick to say that they have not heard anything from the CDC for weeks about the technical instructions, I would love to know how much work the cruise lines have done in negotiating "working frameworks" or "agreements in principal" (i.e. without getting into specific numbers or scope, whether the entities would be agreeable to providing the services thought to be required) with the ports and hospitals, etc.  Since these requirements have been in place since the middle of last year, as part of the no sail order, you would think that there would be some movement in this area, and that the cruise lines could use this information to their PR advantage, but I fear that the lack of information from the lines about this means they are again waiting on the CDC before doing anything.

[Hlitner]

3 hours ago, chengkp75 said:

I was going to list them all, but instead I'll link some:

 

Ferry operators:  https://www.ferrylines.com/en/operators/america-north/ (mixed US and Canadian)

 

Add in any water taxi operator, commuter boat operator, casino boat operator, dinner cruise operator, launch services, pilot boats in many large ports, sight seeing boat operators (including duck boats), whale watching boat operators, large charter fishing boat operators,  and anyone who operates a boat that carries more than 12 passengers, in any coastal, riverfront, or lakefront town or city in the US.

 

As for "various labor unions" being happy, lets add in the US maritime labor unions that would not be happy, and the class action of all the non-union crew of the various vessels named above that would stand to lose their jobs.

Yes yes, I understand that in your world the sky is falling if anything changes.  But "standing" is a tough test used by the US Courts when it comes to civil law.  If a simple order is issued to allow certain cruise ships to move between ...lets say Washington and Alaska, then a ferry service in Alaska would not have "standing" nor would a fishing boat operator.  As to the U.S. Maritime Unions, they would not be impacted because the rules related to Maritime Unions would not change under such an order.   EOs can be quite simple and very powerful without allowing much wiggle room.  Just consider the recent EO that stopped the construction of the multi $billion Keystone Pipeline.  Many parties are impacted and badly hurt but their ability to do anything is questionable.  So some aggrieved parties will eventually try the courts and maybe in a few months or years they will be able to get an injunction (do not hold your breath) but meanwhile that pipeline has been stopped cold and the workers laid off.  With a waiver of part of the PVSA the ships could start to move and perhaps in a year you might find a friendly court to issue an injunction (which would then be appealed and stayed).  Meanwhile the ship are moving without the fear of being fined.

 

What I am suggesting is a temporary fix to a temporary problem which is just what EOs are meant to do in many cases.  A longer term solution (such as overhauling the PVSA) could eventually result but expecting our Congress to accomplish that kind of change is like spitting into a stiff wind from the yardarm.

 

Hank

[chengkp75]

Hank;

 

Let me again reference that any change to the PVSA that would allow foreign flag ships to operate domestically would by definition fall under maritime law, since you are now dealing with more than one country (the US as port state, and the flag state of the ship), and therefore you would need to follow the maritime law legal definition of "passenger vessel", since that is what the PVSA references.  And, that, includes those ferries and fishing boats you dismiss, but that would be held to meet the more expensive US flag requirements, while the large cruise ships get a pass on them.  That gives them standing, no matter where they operate.

 

As for the maritime unions, not sure what you mean.  If suddenly, the US allows foreign crew to serve on US domestic trade routes, without US crew, then the unions would have a whole lot to say about it.

 

As I've just posted on another thread, if this waiver of the PVSA was truly about helping the Alaskan economy, and not about giving people the vacation they desire, then a targeted stimulus package would keep far more of that money in the US, further boosting the US economy.

[broberts]

2 minutes ago, Hlitner said:

What I am suggesting is a temporary fix to a temporary problem which is just what EOs are meant to do in many cases. 

 

What is being suggested is a pointless "fix" so long as the CDC does not allow cruises to depart US ports. It would run counter to its mandate for the CDC to lift the no sail order before covid is non epidemic in the US.

[BlueRiband]

In the US the "Jones Act" was temporarily suspended during past emergencies to allow critical shipments of essentials.  No way do I see the PVSA being suspended to allow cruise ships to operate.   Cruse ships have no domestic competition in the US but environmental zealots would lobby against it even if the CDC had no objections.

[cruisemom42]

1 hour ago, chengkp75 said:

As I've just posted on another thread, if this waiver of the PVSA was truly about helping the Alaskan economy, and not about giving people the vacation they desire, then a targeted stimulus package would keep far more of that money in the US, further boosting the US economy.

 

Exactly!

[JRG]

1 hour ago, chengkp75 said:

Let me again reference that any change to the PVSA that would allow foreign flag ships to operate domestically would by definition fall under maritime law, since you are now dealing with more than one country (the US as port state, and the flag state of the ship), and therefore you would need to follow the maritime law legal definition of "passenger vessel", since that is what the PVSA references.  And, that, includes those ferries and fishing boats you dismiss, but that would be held to meet the more expensive US flag requirements, while the large cruise ships get a pass on them. 

 

Chengpk,  it seems like you may not know the PVSA as well as you think.  Just saying because your reasons to defend it are changing.

 

Perhaps it is a more conservative approach to just wait and see what Biden does,  if indeed there is a PVSA change request.   

 

I think you need to let go of the foreign flag thing just for a moment to better see the big picture

 

 

[JRG]

14 hours ago, Aquahound said:

Ref the carbon footprint piece...I'm left scratching my head on that one.

 

We'll get to the that....be patient

[njhorseman]

1 hour ago, Hlitner said:

Yes yes, I understand that in your world the sky is falling if anything changes.  But "standing" is a tough test used by the US Courts when it comes to civil law.  If a simple order is issued to allow certain cruise ships to move between ...lets say Washington and Alaska, then a ferry service in Alaska would not have "standing" nor would a fishing boat operator. 

Even if you were right American Cruise Lines and Uncruise Adventures would have standing as they do exactly what you think is necessary to have standing...operating cruise ships between Washington and Alaska .

[Charles4515]

1 hour ago, chengkp75 said:

 

As I've just posted on another thread, if this waiver of the PVSA was truly about helping the Alaskan economy, and not about giving people the vacation they desire, then a targeted stimulus package would keep far more of that money in the US, further boosting the US economy.

 

As you may recall I am in favor of making changes to the PVSA but not to give people the cruise vacation they desire now and probably won't happen anyway this summer. Changes to the law need to be thought out by congress with input from all who might be affected and not made by executive order. 

[Aquahound]

53 minutes ago, JRG said:

 

Chengpk,  it seems like you may not know the PVSA as well as you think.  Just saying because your reasons to defend it are changing.

 

Perhaps it is a more conservative approach to just wait and see what Biden does,  if indeed there is a PVSA change request.   

 

I think you need to let go of the foreign flag thing just for a moment to better see the big picture

 

 

You really need to lay off this "it's on Biden's desk" bit because it shows your total lack of understanding of how laws are passed in this country.  This law cannot be waived without going through Congress.  You might want to Google an old School House Rock episode.  

 

37 minutes ago, JRG said:

 

We'll get to the that....be patient

 

So, nothing.  Gotcha.  🙄

[Hlitner]

1 hour ago, njhorseman said:

Even if you were right American Cruise Lines and Uncruise Adventures would have standing as they do exactly what you think is necessary to have standing...operating cruise ships between Washington and Alaska .

Yep, that might be the case assuming they would want to shell out the big bucks to get into litigation.  And there would be a contrary argument (lawyers always have arguments).   But litigation is always a tough road when dealing with EOs because it can take years to resolve...and meanwhile the EO usually remains in effect.  The odds of getting an injunction to shut down the cruises (where the PVSA was waived) are not good.  Keep in mind that only thing that would need to be waived is the levying of fines for a PVSA violation.  I believe (this could be wrong) that the PVSA does not actually prohibit the cruises from happening but would only result in the levy of civil fines.  If the Federal government simply waives the fines (or does not enforce the statute) is is difficult to object.  

 

When I worked for the government there were times I was shocked at the power of the government to do just about whatever they pleased and deal with the consequences at a later date.  The government has plenty of lawyers on the payroll who can argue cases, write briefs, and tie things up for months/years with discovery motions.  None of this costs the government extra money.  But anyone trying to take on the government (such as American Cruise Lines) would need to shell out the big bucks for their own attorneys without any guarantee that they would ever recover that money as the part of a later settlement.  In many ways it is not fair (David vs Goliath) but it is our system.

 

Hank

[JRG]

Paul,  (if I may call you Paul)

 

The argument for whether a PVSA cruiseline limited exemption  is one that should be made with honor.   

 

The supporting argument for Everymans's positon on the matter should also be made with honor.

 

(and I know I shank one every now and then too ,  but my aim is true.)

 

 

With a few good men....we could make a movie out of it.

 

 

 

[chengkp75]

1 minute ago, Hlitner said:

I believe (this could be wrong) that the PVSA does not actually prohibit the cruises from happening but would only result in the levy of civil fines. 

This is incorrect, Hank.  The USC prohibits foreign ships from doing these cruises, and then specifies a fine for a shipowner who violates the prohibition. As for an injunction, I think this would be granted almost immediately, since this would be basic to the economics of the companies with standing.

[Hlitner]

Just now, chengkp75 said:

This is incorrect, Hank.  The USC prohibits foreign ships from doing these cruises, and then specifies a fine for a shipowner who violates the prohibition. As for an injunction, I think this would be granted almost immediately, since this would be basic to the economics of the companies with standing.

Guess we shall have to wait and see and as somebody pointed out it is a moot issue since no ship (with a few very small exceptions) has even been granted approval to cruise out of any US Port.  

[Aquahound]

44 minutes ago, Hlitner said:

Keep in mind that only thing that would need to be waived is the levying of fines for a PVSA violation.  I believe (this could be wrong) that the PVSA does not actually prohibit the cruises from happening but would only result in the levy of civil fines.  If the Federal government simply waives the fines (or does not enforce the statute) is is difficult to object.  

 

 

Hank, that part is actually not true.  Intentional violations of the PVSA can and will result in Caption of the Port orders, barring the ships from port.  The Captain of the Port is the local USCG Sector Commander, who falls in the DHS chain of command.  Further violation then turns criminal which would land the master in jail.

 

Simply waiving the fee does not negate the fact they would still be violating the law.  The only way they could legally do this is if a full waiver is written in to the law (46 USC).  

Edited February 13, 2021 by Aquahound

[JRG]

6 hours ago, Aquahound said:

Intentional violations of the PVSA can and will result in Caption of the Port orders, barring the ships from port. 

 

Paul, I am not saying you are wrong.  But what if new agreements are reached between Port authorities,  the Cruiselines,  DHS, CBP, USGC, FMC, CDC and the AARP and all agreed to carry on and let the penalty be levied.

 

Create a schedule of fines so that the existing $799 fine stays for most PVSA violations,  but for Cruiselines who meet the exemption the fine is $30.

 

You then turn that $30 in to a passenger tax that is passed thru and becomes a revenue cash stream for CBP and USGC    ($30 x 1.4 million cruisers)  or however many cruisers pass thru the gangway a year.

 

Cruisers get an extra day for $30 and don't have to go to the extra port.   Saving hundreds of dollars and keeping it in the US too.   The USCG get a cashflow to better cover cruiseline related ops.  The Capain of the Port is happy because he doesn't have to lock up the master.   The Master is happy.  Biden is happy because he is the guy who maybe can make it all happen.  The Ship and all of the cruise passengers are happy because their ship is not being barred from port.   

 

Its a great loophole if it flies.   

 

p.s.  Can you provide the Section # and Paragraph # for USC46 that you think is applicable to your brief?    Section 46 is broad and I'd like to see what point you are making here.   

 

Thanks JRG

[d9704011]

3 minutes ago, JRG said:

But what if new agreements are reached between Port authorities,  the Cruiselines,  DHS, CBP, USGC, FMC, CDC and the AARP and all agreed to carry on and let the penalty be levied.

Just think of the cash cows existing US laws can be turned into.  In fact, new laws can be passed to raise money for all sorts of things; sort of a tin pot cottage industry.

[Aquahound]

1 hour ago, JRG said:

 

Paul, I am not saying you are wrong.  But what if new agreements are reached between Port authorities,  the Cruiselines,  DHS, CBP, USGC, FMC, CDC and the AARP and all agreed to carry on and let the penalty be levied.

 

Create a schedule of fines so that the existing $799 fine stays for most PVSA violations,  but for Cruiselines who meet the exemption the fine is $30.

 

You then turn that $30 in to a passenger tax that is passed thru and becomes a revenue cash stream for CBP and USGC    ($30 x 1.4 million cruisers)  or however many cruisers pass thru the gangway a year.

 

Cruisers get an extra day for $30 and don't have to go to the extra port.   Saving hundreds of dollars and keeping it in the US too.   The USCG get a cashflow to better cover cruiseline related ops.  The Capain of the Port is happy because he doesn't have to lock up the master.   The Master is happy.  Biden is happy because he is the guy who maybe can make it all happen.  The Ship and all of the cruise passengers are happy because their ship is not being barred from port.   

 

Its a great loophole if it flies.   

 

p.s.  Can you provide the Section # and Paragraph # for USC46 that you think is applicable to your brief?    Section 46 is broad and I'd like to see what point you are making here.   

 

Thanks JRG

 

If enforcement agencies were to get together and come to an agreement, all they can do is push their agreement and recommendations to the hill.  Regulatory and enforcement agencies, even if all were in agreeance, cannot change the law.  They can only legislate for it.  And again, it is not Biden who can make this happen.  As already stated, POTUS does not have that authority.  It still needs to pass the House.  Additionally, regulatory agencies have no reason to push for a PVSA change.  It's a time consuming and exhaustive process and no one is going to tackle such an event if none of the agencies are adversely impacted....which they are not.  

 

A good example of a law written under 46USC in order to grant a waiver is 46USC55121.  That was the law passed giving Canadian vessels a waiver from the PVSA in order to run ferry service in NY until US vessels came available.  If a waiver were to be granted to foreign flagged cruise ships, it would need to be passed in similar fashion.

 

 

[YoHoHo]

On 2/13/2021 at 6:18 PM, Aquahound said:

 

<SNIP>

A good example of a law written under 46USC in order to grant a waiver is 46USC55121.  That was the law passed giving Canadian vessels a waiver from the PVSA in order to run ferry service in NY until US vessels came available.  If a waiver were to be granted to foreign flagged cruise ships, it would need to be passed in similar fashion.

 

 

Thanks for posting this. I only saw recently there was such a ferry (learning new things with these many PVSA discussions) and wondered about the underlying law. I had been thinking about such a need recalling earlier in late summer that a ferry was running now ( twice weekly ) from Bellingham to Point Roberts giving the residents some limited relief from a locked down border. Ferries are not trivial to local economies much like the need for highways to connect communities. As is often pointed out by chengkp75, the PVSA is about a lot more than cruising.

[JRG]

On 2/13/2021 at 9:42 AM, chengkp75 said:

This is incorrect, Hank.  The USC prohibits foreign ships from doing these cruises, and then specifies a fine for a shipowner who violates the prohibition. As for an injunction, I think this would be granted almost immediately, since this would be basic to the economics of the companies with standing.

 

chengkp75,   I gave this some thought.  

 

With a Memorandum of Understanding amongst the needed Principles,  the PVSA fine could be adjusted and administered until a better solution could be put forth,    so that violators would be a welcome source of revenue to some if not all to the Principles.    All existing cabotage laws remain intact as per the temporary agreement which gives relief to Alaska, amongst other things.

 

As for Injunctions,   all legal arguments defeating a PVSA exemption end run will succumb to Force Majeure. Period.   I just don't think we've seen a solid argument yet.  Standing will also take a backseat to FM.

 

As you know or can soon confirm, Force Majeure in the shipping industry has become the hot topic current primary defense in non-performance precedent cases.   

 

Precedent is being established in the Shipping Court cases right now and those cases would be used to support a final judgment.

 

As for loopholes.   Think about the POA and its '"qualified USA component build",  where the ship is considered "US Built" as long as a percentage of it has been certified to be domestic.   (Think NAFTA).  

 

This is essentially a 'legal' loophole WHEREAS (not shouting) the POA is really not an American Built Interest at all,  most of it was probably built Overseas, (which runs counter to the original PVSA Protectionism intent);  So is the PVSA not 'cutting its own tow rope'?

 

Do you see what I am saying.  Covid-19 is a Force Majeure

 

So the POA is granted an Exemption because it fits in a loophole. 

So why should an Exemption not be granted in this case,  it fits in a loophole by adjusting the fine until a better solution is reached.

Edited February 17, 2021 by JRG
final conclusion

[broberts]

1 hour ago, JRG said:

As for Injunctions,   all legal arguments defeating a PVSA exemption end run will succumb to Force Majeure. Period. 

 

Force majeure does not apply. There are many ways to comply with the PVSA without an exception. Just because a cruise line does not like the alternatives for compliance does not justify an exemption.