The Jones Act hornet’s nest

My recent blog about the Jones Act garnered the expected vituperative responses, including a lot of name-calling and chest beating.

A few comments addressed substantive issues, to which I’ll respond here, but the majority consisted of rhetorical questions and ad hominem attacks that — other than being identified as such — don’t deserve a response.

One of my respected colleagues, Michael Hansen of the Hawaii Shippers Council, who comments frequently in the state’s news outlets on the Jones Act and its application to Hawaii, wrote in the Hawaii Free Press that my blog mischaracterized Sen. John McCain (R-Az.) as seeking repeal of the entire Jones Act. Mr. Hansen is correct that the bill Sen. McCain introduced in January was more limited in scope, but at the bill’s introduction he declared, “I have long advocated for a full repeal of the Jones Act, an antiquated law that has for too long hindered free trade, made U.S. industry less competitive and raised prices for American consumers.”

But there’s no reason to quibble over picayunes. Mr. Hansen and I have the same position: The Jones Act unfairly burdens residents of Hawaii. We were joined on July 30 by the Ninth Circuit Court of Appeals, which agreed that the Jones Act is protectionist, but held that the commerce clause of the Constitution gives Congress the power to enact protectionist — even burdensome — legislation. The outcome was so predictable that the lawsuit and appeal bordered on the frivolous, but the ruling does make it clear that if something is to be done about the Jones Act, it must be done through legislation. That means it must be done through politics.

This point was completely missed in a number of comments to my previous blog. Actually, I’ve had a number of clients who benefitted from the Jones Act. Thus, like the senator from landlocked Arizona, I don’t have a dog in the hunt. But the people commenting didn’t like my message and sought to avoid discussion by attacking the messenger. One troll got so exercised he started a forum in which a lot of people issued various obscene and anatomically impossible comments about Sen. McCain and me. Of course, the posters were all anonymous and the insults were run-of-the-mill. However, one accusation that I’m a “scumbag shyster” really cut to the quick. In fact, I maintain that for the record, I’m the other kind of shyster.

In any event, none of this tempest in a teapot dealt with the Jones Act itself, so I’ll state my position as clearly and briefly as possible: Any change to any law, and especially to an economic law, brings winners and losers. Repeal of the cabotage provisions of the Jones Act would help vessel owners and operators and American consumers, and it would hurt U.S. shipyard workers and mariners. But the Jones Act is currently doing the opposite — driving up costs to all for the benefit of a few — so repeal could be characterized as the righting of a longstanding wrong.

I’m not alone in taking this position. The Department of Homeland Security’s “Coastwise Trade: Merchandise” publication Coastwise Trade: Merchandise” publication states, “(T)he intent of the coastwise laws, including the Jones Act, was to protect U.S. shipping interests. The coastwise laws are highly protectionist provisions that are intended to create a ‘coastwise monopoly’ in order to protect and develop the American merchant marine, shipbuilding, etc.”

So assuming this issue is settled, the only remaining question is political. Do we as a nation want to “protect and develop” these special interests?

Since Sen. McCain’s bill was introduced, other business interests and writers have taken up the call for repeal. (Bryan Riley and Brian Slattery of The Heritage Foundation provided an excellent compendium of the reasons against the Jones Act earlier this year.) So even though the bill went nowhere, Sen. McCain is a determined man. If the next administration and Congress bring new attitudes toward the federal government’s role in social engineering, Jones Act supporters may have to engage in a discussion on its merits.

From what I know of Sen. McCain, just calling him names won’t help.

About the author

Capt. Max Hardberger

Max Hardberger is a maritime attorney, flight instructor, writer, and maritime repo man. He has been a correspondent for WorkBoat since 1995. His memoir, Seized: A Sea Captain’s Adventures Battling Scoundrels and Pirates While Recovering Stolen Ships in the World’s Most Troubled Waters, was published by Broadway Books in 2010. He’s appeared on FOX, The Learning Channel, National Public Radio and the BBC, and has been the subject of articles in Fairplay Magazine, the Los Angeles Times, Men’s Journal, Esquire (UK), and the London Sunday Guardian.

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