Jones Act-Oil Spill Update from Maritime Professional Magazine

This is an excerpt from an article published in Maritime Professional Magazine's on-line version. My comments are below.

MarPro turned to the federal authorities for clarification. According to the U.S. Department of Transportation, “It is essential to underscore that, despite allegations to the contrary, the Jones Act has not hindered the BP Deepwater Horizon oil spill cleanup effort.” A prepared statement from DOT goes on to claim that the U.S. Department of Transportation’s Maritime Administration, U.S. Coast Guard, and U.S. Customs and Border Protection are working to coordinate all offers of assistance – from domestic and international sources alike. Foreign-flag vessels have been participating, and will continue to participate, in the cleanup effort. Beyond this, DOT also claims, “If the Unified Command determines that specific assets are necessary but require a Jones Act waiver, we will do whatever is needed to ensure those assets are deployed. But to be absolutely clear, to date, the Jones Act has not prevented or delayed the mobilization of useful assets.” That position seems clear enough.

On Tuesday morning, the Joint Information Center for the spill response in Houston also provided MarPro with definitive advice on the physical assets now in play in the U.S. Gulf for the purpose of assisting in the spill cleanup. This is what they had to say (*):

* Jones Act Waivers Requested: 7
* Jones Act Waivers Denied: 0
* Pending Waiver Requests: None
* Total Foreign Flag (registered) Vessels in Service (5): ~25
* Vessels of Opportunity in Service (1): 2,718
* Skimmers in Service (2): 584
* Barges in Service (3): 504
* Other Vessels (4): 2,934

According to a local spokesperson in Houston, the numbers do not necessarily add up in a linear way. That’s because it wasn’t clear if some of the vessels of opportunity – private boats not necessarily built for oil spill response – were included in the totals represented by the bloc of skimmers being used. In any event, a total number of as many as 6,850 floating assets were reported as being used to combat the ongoing spill. The best information available to MarPro on Wednesday morning was that no more than 25 of these vessels were of foreign registry.

I got the same list when I contacted Unified Command a week ago. What I don't understand is why nobody can say if any of the waivers have been approved. "Waivers Denied (0) is not the same as Waivers Approved. Regardless, 25 foreign-flagged vessels assisting in the clean-up is pathetic, especially when one considers that the Mighty Servant III is one of them (previously working in the U.S. on a waiver) and the others are most likely tiny, inshore skimmers that were shipped here by air.

I'm not so sure the debate is a tempest in a teapot. Or maybe it is because it has gone on for so long. There would be no debate if a temporary suspension had been granted from the start. Now, of course, it's too late. There's too much egg flying around.

I think it behooves the government to prove unequivocally that there has been no downside to not granted a temporary suspension of the Jones Act, whether real or just perceived. In other words, perhaps, from a purely legal perspective, it's true that the Jones Act does not prohibit large foreign-flagged oil recovery vessels from assisting in the clean-up withing three miles of shore. But did owners of foreign-flagged vessels choose to not mobilize because they perceived the Jones Act would place them in violation of American cabotage laws?

Another excerpt from the MarPro article:

Veteran maritime attorney and retired U.S. Coast Guard Captain Dennis Bryant perhaps puts it best when he says, “I continue to be mystified regarding all the controversy about the oil spill response and the Jones Act. The Jones Act only applies to the transport of merchandise (cargo) from one port or place in the United States to another port or place in the United States. Such transport by water must be done by a US vessel eligible to engage in the coastwise trade. Skimming spilled oil off the waters of the Gulf of Mexico outside of three nautical miles is not an activity that implicates the Jones Act, even if the recovered oil is offloaded in a US port.” Bryant ought to know: he has been actively involved with maritime and regulatory matters for more than forty years.

Regarding the legal aspect, and with all due respect to Captain Dennis Bryant, one lawyer will say one thing and another will say another, and then it's a court and/or a federal judge that decides which is which. Why would a foreign ship owner want to tie up his vessels or open the door to a lengthy and expensive legal battle in the U.S.?

From the MarPro article:

MarPro also reached out on Tuesday to the International Marine Contractor’s Association (IMCA), an entity representing the interests of foreign-registered tonnage in the U.S. Gulf. They declined to provide comment for the purposes of this article. Likewise, efforts to elicit comment and clarifications from Allegiance Capital, a firm which is on record as trying to bring oil skimmers and vessels from Europe to the Gulf of Mexico to fight the spill, also proved fruitless. Allegiance Capital was the subject of a Texas newspaper’s recent investigative report that reported, among other things, that this firm had applied for Jones Act waivers on June 16. In contrast, the Joint Information Center in Houston told MarPro on Tuesday that no waivers had been denied and none were pending.

What, exactly, are they saying by their silence?

~seabgb