The cabotage provisions restrict the carriage of goods or passengers between United States ports to U.S. built and flagged vessels. In addition, at least 75 percent of the crewmembers must be U.S. citizens. Moreover foreign repair work of U.S.-flagged vessels' hull and superstructure is limited to 10 percent foreign-built steel weight. This restriction largely prevents American shipowners from refurbishing their ships at overseas shipyards.
The U.S. Congress adopted the Merchant Marine Act in 1920, formerly 46 USC Sec. 688 and codified on October 6, 2006 as 46 USC Sec. 30104. The Act formalized the rights of seaman which have been recognized for centuries.
"From the very beginning of American civilization, courts have protected seaman whom the courts have described as 'unprotected and in need of counsel; because they are thoughtless and require indulgence; because they are credulous and complying; and are easily overreached. They are emphatically the wards of admiralty.'" Capitol Hill Hearing Testimony, Coast Guard and Maritime Transportation Subcommittee; Testimony by John Hickley, attorney at law. Congressional Quarterly. March 27, 2007.
It allows injured sailors to obtain damages from their employers for the negligence of the shipowner, the captain, or fellow members of the crew. It operates simply by extending similar legislation already in place that allowed for recoveries by railroad workers and providing that this legislation also applies to sailors. Its operative provision is found at 46 U.S.C. 688(a), which provides:
"Any sailor who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right to trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply..."
This allows U.S. seamen to bring actions against ship owners based on claims of unseaworthiness or negligence. These are rights not afforded by common international maritime law.
The United States Supreme Court, in the case of Chandris, Inc., v. Latsis, 515 U.S. 347, 115 S.Ct. 2172 (1995), has ruled that any worker who spends more than 30 percent of his time in the service of a vessel on navigable waters qualifies as a seaman under the act. An action under the act may be brought either in a U.S. federal court or in a state court.
Critics note that the legislation results in costs for moving cargoes between U.S. ports that are far higher than if such restrictions did not apply. In essence, they argue, the act is protectionism.
Opponents contend that the U.S. shipbuilding industry has suffered as a result. Ship operators are given an incentive to maintain veteran U.S.-built vessels rather than replace them with new tonnage. In addition, U.S. shipyards have adapted to building only those ships that are needed by operators, with price tags that reflect their all-American workforces. Subsequently, the claim is that U.S. shipbuilders have long since priced themselves out of the international market for merchant ships.
A 2001 U.S. Department of Commerce Study study indicates that U.S. shipyards built only 1 percent of the world's large commercial ships. Ships are virtually never ordered in U.S. shipyards unless they are for use in U.S. Shipping. The report concluded that the lack of United States competitiveness stemmed from foreign subsidies, unfair trade practices, and lack of U.S. productivity.
Moreover, critics point to the lack of a U.S.-flagged international shipping fleet. They claim that it makes it economically impossible for U.S.-flagged, -built, and -crewed ships to compete internationally with vessels built and registered in other nations with crews willing to work for wages that are a fraction of what their U.S. counterparts earn.
"The Shipping Act steals jobs from American seamen who could be working on coastwise freighters and feeders." Rob Quartel, president of the Reform Coalition.
Some proponents make the case that allowing foreign-flagged ships to engage in commerce in American domestic sea lanes would be like letting a foreign automaker establish a plant in the U.S. which doesn't have to pay U.S. wages, taxes, or meet national safety or environmental standards.
"If someone were to propose that we let foreign workers compete with GM workers in the U.S., they would be laughed at." Arthur J. Volkle, associate general counsel, MARITRANS Inc.; a Philadelphia-based tug and barge operator.
Requests for waivers of certain provisions of the act are reviewed by the United States Maritime Administration on a case by case basis. Waivers have been granted for example, in cases of national emergencies or in cases of strategic interest. For instance, declining oil production prompted MARAD to grant a waiver to operators of the 512-foot Chinese vessel Tai An Kou to tow an oil rig from the Gulf of Mexico to Alaska. The jackup rig will be under a two-year contract to drill in the Alaska's Cook Inlet Basin. The waiver to the Chinese vessel is said to be the first of its kind granted to an independent oil-and-gas company.
Pressure exerted by 21 agriculture groups, including the American Farm Bureau Federaton, failed to secure a U.S. Shipping waiver following Hurricane Katrina. The groups contended that farmers would be adversely affected without additional shipping options to transport grains and oilseeds.
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