This article is brought to you by Arnold & Itkin LLP.
The Jones Act is a source of significant controversy. Some believe it has outlived its purpose. Others see it as necessary for the protection of American mariners and our country as a whole.
What does the Jones Act do, and why is it still needed today? Let’s take a look.
Created to stimulate the shipping industry in the aftermath of World War I, the Jones Act is a federal law that has regulated maritime commerce in the United States for 100 years. Among other things, it specifically addresses cabotage, which is the transportation of passengers or goods between ports in the same country. Under the Jones Act, all goods transported between U.S. ports must be shipped on vessels built, owned, and operated by American citizens or permanent residents.
Over time, some individuals and groups have expressed concerns that the Jones Act is harming the maritime shipping industry and the U.S. economy by increasing shipping costs. It has been referred to as “protectionist legislation” and has been the subject of scathing articles discussing its faults because it uses restrictions to protect domestic industries from foreign competition.
What these articles don’t discuss is how the Jones Act protects the people on these vessels, who work in some of the most challenging and treacherous conditions imaginable.
The Jones Act Helps Injured Seamen
The Jones Act does more than regulate maritime commerce. It also provides sailors with certain rights if they are injured at sea, allowing them to seek damages from a vessel owner or employer if their injuries were caused by negligence or an unseaworthy vessel.
Under the Jones Act, an injured seaman may bring a personal injury action in either federal district court or state court. The Jones Act also grants injured workers and their families the right to seek a jury trial.
The Jones Act offers key advantages over standard workers’ compensation claims that apply to other work-related injuries in the U.S., offshore or on land:
- The opportunity for just compensation. A standard workers’ compensation claim generally provides for an injured worker’s medical care and a portion of their lost wages. This means many workers are not adequately compensated or made whole by workers’ compensation following an injury on the job. However, the Jones Act permits injured seamen to seek additional damages not traditionally covered by workers’ compensation. This may include all of their lost earnings, including past and future wages, medical treatment past and future, disfigurement damages, and even emotional trauma like pain and suffering or loss of enjoyment of life. Jones Act settlements and awards are typically far higher than workers’ compensation benefits allow.
- A lower burden of proof. Workers’ compensation is provided on a no-fault basis, which means that the injured worker does not need to prove that someone else was to blame. Personal injury cases, on the other hand, require that the injured party (plaintiff) prove that the at-fault party (defendant) was responsible. Depending on which state’s laws apply, establishing fault in a personal injury case can be difficult to prove. For a Jones Act claim, the burden of proof is minimal. An injured seaman need only prove that he/she was a seaman and that the defendant played a role in causing the injury.
It is important to note that injured seamen are also entitled to maintenance and cure (living expenses and medical treatment) on a no-fault basis under the Jones Act.
The Jones Act serves to level the playing field between injured seamen and their employers. Eliminating it altogether would have catastrophic consequences for maritime workers and their families.
Increased Shipping Costs & Other Criticisms of the Jones Act
At the end of World War I, the U.S. shipping industry needed a boost. When Senator Wesley Jones introduced the Merchant Marine Act of 1920 (frequently called the Jones Act), Congress saw it as an opportunity to help the shipping industry recover. In the century since, the Jones Act has seen numerous revisions.
Those against the Jones Act say it increases shipping costs and, therefore, the cost of goods in the U.S., which impacts all Americans. There are concerns about how the Jones Act affects Puerto Rico in particular. A 2012 study by the New York Federal Reserve found that the cost of transporting a shipping container from the mainland to Puerto Rico was twice as high as shipping the same container from a foreign port. A 2019 report by an NYC-based economic consulting firm claimed Puerto Rico residents faced an additional $1.2 billion in costs due to domestic shipping requirements each year.
Those in favor of the Jones Act speak of the 650,000 American jobs and $150 billion in economic benefits brought by the U.S. maritime industry each year. They speak of the stability it provides and the ways it protects the United States from foreign influence and control. During the COVID-19 crisis, for example, the Jones Act kept American maritime and shipbuilding jobs secure and prevented foreign companies from controlling the flow of domestic resources and goods that are helping to keep the economy afloat.
We must also remember that there are exceptions. The U.S. government has granted temporary waivers on Jones Act requirements on several occasions, usually after natural disasters or in other scenarios where foreign vessels were needed to provide supplies or aid to affected areas. In May of 2021, the Department of Homeland Security issued temporary Jones Act waivers to two Gulf Coast refiners (Valero and Citgo), allowing them to transport fuel on foreign vessels to areas of the East Coast that were affected by a ransomware attack on Colonial Pipeline, a midstream company that’s responsible for transporting about half the gas, diesel, and jet fuel used along the East Coast.
Eliminating the Jones Act Would Only Have Short-Term Benefits, If Any
Eliminating the Jones Act might cause short-term economic benefits, mainly to consumers and shipping companies who would benefit from decreased shipping costs. But what about all the American mariners whose jobs would be threatened when foreign companies took over U.S. shipping? What about the other side of the Jones Act: the protection it provides to injured seamen?
There are no foreseeable long-term benefits to be had by repealing the Jones Act. Instead, our focus should be on what we can do to improve the U.S. maritime industry with new vessels and methods of delivery, or even enhance government incentives to help U.S. shipping companies decrease costs.
Fighting for Seamen’s Rights Under Maritime Law
Seamen work in one of the most dangerous industries. They and their families deserve all the protection that the Jones Act has to offer. Arnold & Itkin has fought for the rights of maritime workers in U.S. and international waters since 2004, ensuring they have the opportunity to rebuild after serious offshore accidents. The firm has represented seamen after the worst maritime disasters, including the Deepwater Horizon explosion and the loss of the El Faro. The firm’s maritime lawyers are currently representing a number of the crew members of the Globetrotter II, which was left stranded in Hurricane Ida.
Amid all the controversy surrounding the Jones Act, one thing is certain: Arnold & Itkin will continue to fight for what’s right. No matter what.
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