The Jones Act is a section of the Merchant Marine Act of 1920 that deals with seaman’s rights and coastal trade in the United States. The Act is considered by many as one of the most important pieces of legislation affecting domestic maritime trade. Named for the Senator that introduced it, Wesley Jones, the law replaced a number of antiquated laws based on England’s original Navigation Acts. Its intention, as stated in the Act’s preamble, is to “develop and encourage” a well-equipped and prosperous United States maritime industry as well as address concerns of national defense. However, the Act is near to the hearts of — and arguably appreciated most dearly by — the many seamen and seawomen in the U.S., as it finally formalized the ‘understood’ rights that had existed in goodwill for generations.
The Jones Act and Seamen’s Rights
Before the creation of the Jones Act, obtaining restitution from an unwilling employer for injuries sustained while at sea was a difficult process for seamen. For centuries, it had been widely understood that when a maritime worker was injured on the job, it was his employer’s responsibility to provide medical assistance free of charge and then financial assistance while the seaman convalesced. However, this naturally did not always occur – and when it did, it would sometimes consist of woefully insufficient assistance on the part of the employer. With no real legal option to demand appropriate care and damages, seamen were left at the mercy of their superiors – not all of whom would be fair or moral. Thankfully, The Jones Act changed all this.
Put simply, the Act’s provisions were adopted largely from the Federal Employers Liability Act, or FELA. Passed in the early 20th century, FELA is a United States federal law that was enacted to protect and compensate injured railway workers. Noting the increased danger faced by railroaders when compared to the average job, FELA gave these workers the ability to sue following an injury on the job. Due to its basis on this older act, the Jones Act features similar protections as well as a similar burden of proof.
Unlike Workers’ Compensation laws that are held at state level, rewards through the Jones Act are not automatic following an injury. In fact, acceptance of ‘workers comp’, as it is colloquially known, generally results in a mandatory loss of the right to sue one’s employer. The Act requires the injured maritime employee to show that the defendant was negligent to some degreein order to successfully receive compensation. It is important to note that the employer does not need to be shown to be solely responsible for the injury or loss of life.
While negligence here covers the expected areas such as failure to maintain a ship and its equipment and improper training, it extends to other situations as well, some of which may be surprising. These include poor selection of other crewmen, demanding overtime and even habitually allowing inebriated seamen onto the vessel (in such cases, a crew member can sue for injury even if he was drunk at the time). Injuries need not occur during work shifts – those sustained while the seaman is living on, boarding or disembarking the vessel are also covered. A claim of ‘unseaworthiness’ is also one not covered by international maritime law that can be brought under the Jones Act.
As for the types of damages that can be claimed, these are also quite numerous. In addition to medical expenses and loss of wages, injured workers can claim pain and suffering, loss of support to family members, mental anguish and funeral expenses among others. The Act states that any claims must be brought within 3 years, and that to qualify as a seaman, the individual must spend at least 30% of his or her time working on a vessel. Definitively proving one’s status as a ‘Jones Act seaman’ can be challenging – however, experienced maritime lawyers can help.
The Jones Act and Coastal Trade
To ship owners and shipping companies, as well as the United States Government, this is vitally important, and indeed is largely the focus of the Act as presented. Simply put, it decrees that ships engaging in coastal trade within the United States must be American – i.e. officially flying a U.S flag, constructed in the United States, and carrying a crew that consists of at least three-fourths U.S. citizens and permanent residents. Foreign vessels are prohibited in such coastal (a.k.a. ‘coastwise’) trade, including commercial transport of passengers and the catching and transporting of fish and other sea life for business purposes. Coastwise trade is considered trade that begins at any U.S. port and ends at another (mainland or otherwise), and merchandise that constitutes such trade is defined as any that holds some sort of value.
While this has obvious direct positive effects on the ability for U.S. ships and their workers to obtain domestic shipping work, the Act has seen its fair share of criticism. Some critics charge that the Jones Act hiders free trade, severely limiting how foreign ships can operate in American waters. For example, a non-American ship cannot offload its goods at one U.S. port, then pick up and carry goods to maximize its complement and continue to another U.S. port – even if the first is nowhere near the mainland. This, critics claim, drives down the number of foreign ships engaging in trade due to decreased profitability.
A very specific criticism refers to the Act’s effect on shipping with Puerto Rico. While Hawaii, Alaska and Guam are all subject to the Jones Act, it is Puerto Rico that is most often singled out as negatively affected. Critics claim that freight rates resulting from the exclusion of foreign ships and crews are as much as twice as high as they would be otherwise. It’s most vocal critics have gone so far as to point to studies that suggest the Jones Act is a direct cause of the debt and economic crisis being experienced by Puerto Rico. However, opposing studies point to numerous trade-offs that would come with the modification or abolishment of the act. One such study concludes that there are many more factors that contribute to shipping rates and the island’s economic state, and it is therefore impossible to claim the Jones Act is to blame.
Ironically, opponents also claim that the shipbuilding industry in the U.S. it was partially created to energize has suffered as a result of the Jones Act. They theorize that the industry had adapted to, for the most part, building ships needed by Jones Act operators, and are less motivated to build additional ships that would not qualify. In addition, they contend that, similar to other industries, the price of American-made ships due to the cost of the workforce makes it difficult to penetrate an international market. In short, opponents see the Act as protectionist, hampering free trade and increasing the cost of shipping between U.S. ports. Its proponents counter that the Jones Act promotes a skilled merchant mariner workforce, protects seamen, improves the country’s ability to produce commercial vessels and, as we will see next, is vital to national security and wartime interests.
Like many laws, there are some situations that technically fall afoul of the Jones Act but are unlikely to ever be enforced (hopefully). One example is the potentially very wide definition of “paying passenger” and “owner”, and the popularly debated case of the bareboat charter. In bareboat charter, a group hires a boat from the owner – and the boat alone. The owner provides no provisions and no crew. Someone amongst the group (whether a qualified member of the group or a separately hired professional) will be the skipper, and all other crew and provisions are to be taken care of by the carter group. In this situation, the active skipper, though supposedly an unpaid co-member, takes on the duties and legal responsibilities of the position regardless.
However, let’s say the group agreed to put gas in the boat, and on returning it, there is still half a tank left. Or, even more innocently, the group leaves a cake for the owner as a thank you. Believe it or not, one could claim that this is a flow of business goodwill, and as result, a passenger for hire situation has been created between the owner and the group of passengers. If that is indeed the case, this would then open the owner up to legal culpability for any incidents that occurred – and if the boat in question is foreign built or foreign-owned, the ship and its owner would then be operating in violation of The Jones Act. Realistically, a situation such as this would never be enforced unless other specific factors made it a much more viable case. However, for this very reason, owners of pleasure vessels are exceedingly cautious not to put themselves in a position that could even seem like a passenger for hire one.
The Jones Act and National Security
A common retort to claims that the Jones Act is unnecessary or actually hurtful to the shipping industry is its importance to national security. Proponents point out that without the Jones Act, passage between U.S. ports by aliens working on commercial ships would increase drastically. The majority of maritime crew members entering the U.S. annually (as much as 80%) arenon-citizens/permanent residents – however, since, per the Act, the majority of these interactions will consist of arriving at and leaving a single port, supporters say this makes monitoring far easier. And while there is yet to be a confirmed case of a terrorist or other extremist gaining access to the country and committing a crime using a seafarer visa, the Department of Homeland Security has long considered this to be a possibility and supports any laws or practices that lessen its likelihood.
There is another national concern that, while often overlooked currently, was a main reason for the Act’s creation. During World War I, America found herself unable to support her domestic shipping needs after the countries involved (including allies) withdrew their ships to aid in the war effort. On joining the war, the U.S. further found that its commercial fleet was insufficient to aid in its own war efforts. To remedy the situation, the United States Shipping Board (USSB) was quickly formed. This agency commenced a considerable ship-building effort, and was later buoyed by the Jones Act, which created a requirement for more U.S. ships. While the USSB has long been replaced by other agencies, the Jones Act remains.
Exemptions and Waivers
Interestingly, a number of exemptions to the coastal trade provisions exist. The U.S Virgin Islands and American Samoa are completely exempt from this section of the Act. There are also partial exemptions in specific locales including Guam and certain ports in Alaska. Meanwhile, waivers are granted on a case-by-case basis, usually due to a national emergency or national defense concerns. The majority of such waivers have been granted to allow movement of emergency supplies and oil/natural gas in the wake of devastating hurricanes.
Maritime Lawyers Can Help Enforce Your Jones Act Rights
Judgments awarded to injured seamen or their families can be extremely substantial, running into the tens of millions. It’s not too surprising, then, that in cases where seamen are likely to prevail, negligent employers will do their best to squash the case or avoid it being brought altogether. A maritime lawyer knowledgeable and experienced in enforcing the Jones Act can ensure you receive fair compensation for an injury sustained on the job that may result in high medical bills and inability to support yourself and your family. The maritime lawyers at the law offices of Charles D. Naylor have been recognized as some of California’s best. With over 100 years combined experience, they have utilized the Jones Act to obtain settlements as high as $55 million dollars for seamen and their families. For a free initial consultation, call us at 1-888-440-5829or contact us through our easy to use webform.