About three miles beneath the surface of the North Atlantic Ocean, 35 nautical miles north of Crooked Island in the Bahamas, at 23.2°N 73.7°W, rests SS El Faro, a 790-foot-long cargo ship that was lost at sea on October 1, a victim of Hurricane Joaquin. The ship and her entire 33-man crew were lost; other than one unidentifiable body and an empty lifeboat in a debris field, little else has yet been found. (The ship had two lifeboats that had more than enough space for the entire crew as well as supplies; it is unknown if the crew, a well-trained crew of professionals, even had the chance to abandon ship.)
El Faro had been on its way from Jacksonville, Florida, to Puerto Rico. And there lies the problem. It did not need to be there, stormy day or sunny day, and it does not now need to be at the bottom of the Atlantic, with 33 dead. An American law known colloquially as the Jones Act created the reason the ship was where it was and now, where it is.
On the day of the disaster, the ship’s captain was planning to sail ahead of the storm, which the ship was strong enough to do, except something went wrong. At present it is unknown what precisely caused the mechanical failure. In his last contact with shore, the captain reported that the ship had lost propulsion and had taken on water but that the crew was removing the water. According to reports, the transmission was “calm.” However, according to the captain, a man identified as Michael Davidson, the ship already was listing at 15 degrees. Without propulsion, the huge ship was tossed about at the mercy of the Category 4 storm’s 145-miles-per-hour winds and 50-foot chop.
Some 15 minutes after his calm report, the Coast Guard reports, it received a automated distress signal. The odd thing is that it received only one distress signal. In an interview with the Portland Press Herald, Lt. Cmdr. Gabe Somma, a spokesman for the Coast Guard, said El Faro’s Emergency Position Indicating Radio Beacon, or EPIRB, emitted a signal around 7:30 a.m. on October 1 but there was no contact after: “‘We got one ping (from the EPIRB) and that was it,’ Somma said. He said those transmitters can malfunction, but the fact that the device pinged only once is puzzling. The distress signal beacons interface with satellites and are used to locate missing vessels.”
It is now merely a matter of time before the remains of the ship and its crew are located so the ship’s last moments can be recreated and the specific causes of the disaster identified.
According to reports, the 40-year-old ship was not seaworthy, not even in calm seas much less stormy ones. Three former crew members, each of whom had sailed on El Faro in the last year, came forward and told CNN that the ship was a rust bucket that its owner, TOTE Maritime, “bandaged with steel” and spent money on only after things broke. “Marvin Hearman, on the ship when it returned to Jacksonville in late August, said there was rust everywhere on El Faro and compared it to a 40-year-old car. He also said the cook’s room leaked a lot of water. Bruer said the ship had holes in its deck,” according to CNN.
In the ship’s previous incarnation, as Northern Lights, it played a role in Operation Enduring Freedom as a transport ship bringing Marines from San Diego to Kuwait. On March 19, 2003, it was rocked by missile fire. None directly hit the vessel. During its military support service, it traveled from San Diego to Kuwait and back 25 times in 30 months.
TOTE’s predecessor company purchased the vessel in 1991 and it quickly established itself as the company’s workhorse ship; at first it traveled the Tacoma-to-Alaska route, and then after its military support service, it became one of the company’s Jacksonville-to-Puerto Rico “lifeline” ships. Before its sinking, the ship was scheduled to be returned to the Alaska route this winter.
TOTE Maritime told CNN, “El Faro was a well-maintained vessel, classed by the American Bureau of Shipping and regularly inspected by that classification society and the (U.S. Coast Guard).” According to the News Tribune, the company reported that El Faro had no history of engine failure, and the company said the vessel was modernized in 1992 and 2006. Coast Guard records show it underwent its last inspection in March.
TOTE Maritime specializes in ferrying goods from the mainland United States to Puerto Rico and from Tacoma to Alaska. It is one of six units in the Saltchuk companies, a shipping conglomerate. It has been in the “Jones Act trade” since 1985, according to a company web site.
The Jones Act, the Merchant Marine Act of 1920, protects and maintains our merchant marine fleet. Section 27, which was amended in 2002, requires that all goods that are to be shipped to a foreign port by sea must be shipped on vessels that fly the U.S. flag, were built in the U.S. by U.S.-owned companies, are owned by U.S. citizens, and are manned by U.S. citizen or permanent citizen crews. As a citizen of the United States, this sounds reasonable to me, even if surprisingly protectionist, as ocean shipping is not something that occupies the thoughts of an average U.S. citizen.
The Jones Act gets profoundly specific in its dictates:
… no vessel which has acquired the lawful right to engage in the coastwise trade, by virtue of having been built in or documented under the laws of the United States, and which has later been rebuilt, shall have the right thereafter to engage in the coastwise trade, unless the entire rebuilding, including the construction of any major components of the hull or superstructure of the vessel, is effected within the United States, its Territories (not including trust territories), or its possessions.
If your American-headquartered shipping company acquires a perfectly fine, up-to-date vessel, one that is younger than 40 years of age, say, and one that has not seen action in a war (both of these describe the now-departed El Faro), you can not use it for shipping, unless you undertake a complete rebuilding of the craft, stem to stern and all of the parts inside, to make it a completely new, but American-made, ship. May as well use the bucket of rust you already have.
That provision right there is part of the reason the El Faro now sits three miles beneath the waves, but there is no causal relationship between that language and the ship sinking. It is why a ship that was a half-a-wreck already was still in active service, though.
The lobbyist organization that represents American shipbuilders does not like any argument that the Jones Act is anything other than the best law on our books. U.S. Senator John McCain has advocated repealing the Act, for reasons that probably have to do with other, competing lobbying factors, and has discovered that his is a lone voice: in a speech to the Heritage Foundation, “he called the act ‘an antiquated law that has for too long hindered free trade, made U.S. industry less competitive and raised prices for American consumers.'”
(Prices represent the cost of doing business, as we all know, and if a shipper, the “middle man” in a chain, must buy a brand-new, expensive American-made ship or expensively retro-fit a ship it buys so that it becomes American-made, that shipper is going to pass on that cost to consumers.)
McCain joked, “But I have to tell you … the power of this maritime lobby is as powerful as anybody or any organization I have run up against in my political career. All I can do is appeal to the patron saint of lost causes and keep pressing and pressing and sooner or later you have to succeed.”
The lobbyist organization that represents American shippers has already replied to arguments like mine. Matt Paxton, President of the Shipbuilders’ Council of America (SCA), said, “To imply that vessels that do not have to comply with rigorous U.S. safety standards are safer than those that do defies common sense. To try and connect a law that works to protect our economic and national security to this tragedy, particularly during a period when our industry family is mourning such a loss is not only incorrect, but shameful.”
Mr. Paxton is wrong. To argue that an incident did not need to take place, to use that incident to argue for changes in an outdated law to maybe prevent future lives from being lost is to honor those 33 dead.
The protectionist provision of the Jones Act, the mandate that shippers use only American-made and American-crewed ships, that provision has created a lucrative economy for the American shipping industry. That is what the SCA is fighting to maintain. That Jacksonville-to-Puerto Rico route is a valuable one. Because many non-American companies do business in Puerto Rico as well as sell goods in America, when they send their wares from Europe or wherever, to get them into Puerto Rico they must off-load onto American-owned and American-manned ships (very often ones owned by TOTE) in American ports (usually Jacksonville). That so-called “lifeline” to Puerto Rico, whereby products can not be shipped directly to that island from Europe but must be routed through U.S. ports, usually causes prices on Puerto Rico to run about 15% higher than in the United States for the same goods.
The American shipping industry needs that lifeline to Puerto Rico more than Puerto Rico needs it. That desperate need is why 33 men died in a hurricane this month. They did not need to die.
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