For decades, a few politicians have crusaded against the Jones Act. Sometime in the early aughts, Sen. John McCain picked up where Sen. Jesse Helms left off, though neither had much success. Most of the public knows little about it. But now the law is in the national spotlight because it’s preventing ships from bringing aid to the U.S. Virgin Islands and Puerto Rico, which were recently devastated by two Category 5 hurricanes, Irma and Maria.
The Jones Act is a maritime law limiting U.S. port-to-port trade to American ships and crews. For anyone who has taken a cruise and had to stop and disembark at a Canadian or Mexican port before heading on to Alaska or Puerto Rico — or has ever wondered why, say, British Airways cannot fly Houston to New York — that’s the Jones Act in action.
It isn’t just the U.S. On the water or in the sky, countries generally do not allow domestic port-to-port travel by foreign flagged vessels.
At first glance, it might all seem silly, especially to free trade, capitalist Americans. What possible public good could be served by having to disembark somewhere in Canada on a trip from Washington to Alaska? And the protections for industry? No thanks. As Sen. McCain might say, repeal and start over.
This brings us to the paradox of Chesterton’s Gate, the counsel that wise leaders must know what they are undoing before they undo it. GK Chesterton’s sage advice comes from The Thing, in the opening to the chapter “The Drift from Domesticity”:
In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.”
This paradox rests on the most elementary common sense. The gate of fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable.
What is the Reason for the Jones Act?
The Jones Act, formally known as the Merchant Marine Act of 1920, does many things in Maritime Law. It arose out of the Second Circuit and the Supreme Court scolding Congress on the nuances of federal and state lawmaking boundaries. The Justices found a law attempting to grant the tort of negligence to seamen unconstitutional, and kicked it back to Congress to fix. The Jones Act was Congress’s second, maybe third, attempt.
In the main, the Jones Act gave seamen the ability to file civil suits, as sailors on the high seas fell though the cracks of U.S. federal and state negligence laws. The act also contained the U.S.’s cabotage laws — maritime protections countries have enacted for centuries for security and defense.
“Cabotage” is derived from the French term caboter, which means “to sail along the coast.” By controlling which ships are allowed to operate on a coast, cabotage laws are primarily designed to provide coastline security. Consider how much more daunting border security would be if foreign flagged and crewed vessels could hop from one U.S. port to another.
Cabotage laws also protect naval defense capability.
The shipbuilding industry is not a typical widget market. Building ships has a long lead time. From the perspective of naval readiness, establishing shipyards, experienced shipbuilders, and experienced crews takes too long to allow typical market swings to run their course. When war breaks out, a country needs established shipbuilding infrastructure, personnel, and know-how to meet the spike in demand. And after a conflict, the resulting glut of ships and sailors would put experienced shipbuilders out of business. To protect their navies, countries have historically insulated the industry from these swings.
Cabotage provisions were one of the first acts of a nascent U.S. Congress in the late 18th century. They were expanded in the 19th and 20th centuries and enacted for new industries as they were born. The Jones Act cabotage provisions address America’s dismal experience in WWI, when the United States had a woefully insufficient fleet at the beginning of the war, German U-boats sank military, merchant, and civilian ships almost at will, and President Wilson basically nationalized U.S. shipyards after the declaration of war to scandal and little success. We made a bunch of wood hulls, and most ships were not completed until after the Armistice.
The Jones Act aimed to keep the United States from being caught short again, and it laid the foundation for America’s rapid mobilization in WWII.
What’s Wrong With Cabotage?
The primary complaints against cabotage deal with cost, because it makes U.S. shipping more expensive for consumers. But what price should we put on security and naval readiness? By our geography we are more dependent on maritime commerce and more vulnerable to port security lapses than most citizens appreciate. Furthermore, the United States is the main provider of open ocean security, in part because other naval powers, such as the U.K., have pulled back.
The problems are not limited to military security.
Flags of convenience, or FoC’s, allow shippers to get around strict and expensive U.S. regulations, such as double hull requirements enacted after the Exxon Valdez oil spill. Thus, shippers might seek out a country like Mongolia, which has lax rules and enforcement because it’s landlocked and therefore has little stake in shipping.
FoC’s also make the slave trade easier to conduct. Cabotage laws make it harder.
While these explanations counsel against the reflexive calls to repeal the Jones Act, they do not explain President Trump’s hesitation in suspending the Act in the current emergency. (He finally did so Thursday morning.) It is often and easily done. President George W. Bush did so after Hurricane Katrina. President Barack Obama took criticism for not suspending it during the Deep Water Horizon oil spill, but he did not need to because the Jones Act exempts oil spill response vessels.
Industry experts know the Jones Act isn’t working as well as we need. American shipbuilding is in trouble and even the U.S. military has contracted some construction elsewhere as American shipyards can’t meet all of their demand. The Jones Act may need reform, but, following Chesterton’s advice, we should not undertake that until we appreciate how the maritime world is different from typical markets, which the age and constant presence of these laws should signal to us.
Leslie Loftis is an admiralty lawyer by training, who spent much of the time between her undergraduate history degree and her law degree working as a stewardess on U.S. flagged cruise ships and for a sailing company in the U.S. and British Virgin Islands. When this piece publishes she will be attending the University of Texas’s annual Continuing Legal Education conference on Maritime and Admiralty Law. For a comprehensive defense of the Jones Act cabotage provisions, please see “How the Misunderstood Jones Act Enhances Our Security and Our Economy” by Samuel Giberga.