The Jones Act: The Merchant Marine Act of 1920 in the 21st century

In 1920, Sen. Wesley Livsey Jones, R-Wash., went on a tear. He’d lost some battles in the past: six years earlier, his deeply unpopular attempt to snatch the Yakama Nation’s land without paying for it had died in committee, and his support for Prohibition was costing him votes. But when it came to channeling federal dollars to his constituents, Sen. Jones could make things happen. He’d just secured the Puget Sound Navy Yard for Bremerton, Wash., and now the major players in Seattle’s maritime industry were eager for legislation that would give them an advantage in the rapidly expanding Alaska trade.

That was what was uppermost in Sen. Jones’ mind when he drafted the Merchant Marine Act of 1920 — along with a commendable concern for the welfare of merchant mariners — although his pitch to Congress was based on the lessons of World War I and the argument that this legislation would strengthen the nation’s war-readiness. So he would, no doubt, be surprised today at the vast and unwieldy body of legislation and litigation that has followed what has become known in the 100 years since as “The Jones Act.”

As vigorous a legislator as Jones obviously was, he didn’t craft the Jones Act out of whole cloth. In fact, laws regulating cabotage — the carriage of goods and persons between the ports of one country by a vessel of another country — date back to England’s Navigation Act of 1651 (ironically, meant to force the American colonies to rely on British ships). In fact, U.S. antipathy toward such restrictions on free trade had prevented Congress from passing similar measures previously, but the nation’s difficulty in supplying its allies in the recent European war — and the national disgust with our lack of readiness — enabled Jones to push through a wide-ranging bill with a number of loosely related provisions that still present open questions to our legislatures and courts.

Politicians, including the late Sen. John McCain, R-Ariz., have inveigled against the Act and introduced bills repealing it in part. Industry associations, such as the Hawaii Shippers Council, have sought to have provisions relating their particular destination weakened or repealed, but Congress and the courts have declined to make major revisions. However, after the loss of the El Faro — a superannuated ship on the U.S.-Puerto Rico run that survived as long as it did in ocean commerce solely due to the Jones Act — and the devastation of Puerto Rico by Hurricane Maria, new voices are joining the call for repeal or revision.

Strong voices in favor of the Act remain, including those of shipyards that benefit from its requirement that U.S.-flagged ships get repaired at U.S. yards and those of mariners who benefit from the restrictions on foreign nationals aboard U.S.-flagged ships. Further, the argument for building and maintaining U.S. bottoms in case of war, and having a pool of trained U.S. mariners at ready, remains a strong one. As for the Act’s provisions protecting mariners from abuse, there is little opposition to the Act among a public long-aware of the unequal positions of employers and seafaring employees in this ancient trade, except, perhaps, among defense lawyers, and their concerns have never resonated with either the public or the courts.

In commemoration of the 100-year anniversary of the Merchant Marine Act of 1920, WorkBoat magazine’s November cover story will be a point-counterpoint on the Jones Act. Correspondent Dale Dupont will summarize the arguments in favor of the Act and I’ll be outlining the adverse positions. There are certain to be broad-ranging discussions of the Jones Act in the coming months and years, in the halls of Congress and on our streets and waterways. Those in the workboat industry, including owners, insurers, masters, crewmembers and customers, have a vital role to play in bringing their perspectives to the table.

A hundred years ago, Sen. Wesley Jones was able to persuade Congress to pass his groundbreaking legislation by discussion and debate. A hundred years later, we should be able to consider the Jones Act and its application to the 21st century in the same way.

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.

1 Comment

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    Go ahead get rid of the Jones act. Then the next time they need American Merchant Mariners to man the rails for a conflict there will not be any. Go right ahead.

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