The Pointless Loss of El Faro

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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  1. Leigh W. Smith · October 20, 2015

    Liking only the fact of now being informed about this ship’s Fate and how it came to pass. Thank you for doing all that research, Mark.

    Liked by 1 person

  2. tradeworkspr · October 22, 2015

    Hi Mark, I read the article from Mr. Nelson Denis and I have to express it has wrong facts for a very long time. I’ve tried to post several times since last night (is quite lengthy).. I’m an expert in international trade for import/export of merchandise, I’m a U.S. Customs broker with 21 years of experience specially in Puerto Rico’s port operations!


  3. tradeworkspr · October 22, 2015

    Hi Mark, I read this article from Mr. Nelson Denis blog and I have to express he has wrong facts for a very long time. I’ve tried to post my expert reply several times since last night (is quite lengthy) with no success.. I’m an expert in international trade for import/export of merchandise, I’m a U.S. Customs broker with 21 years of experience specially in Puerto Rico’s port operations!


    • Mark Aldrich · October 22, 2015

      This is the 2nd time you’ve sent the same comment. Whose article has “wrong facts”? Mine? This other person’s (Nelson Dennis, whom I do not know).

      My column is an opinion piece based on facts, double- and triple-sourced.

      Are my interpretations of the Jones Act incorrect?


      • tradeworkspr · October 22, 2015

        my apologies.. my internet connection went down when I hit the post button.. I like your article, in fact is what we all should read in an article of this kind under this circumstances. I just noticed you post on Mr. Denis blog and wanted to help you (as you seen interested in the matter) with tru fact of Puerto Rico imports on regards to “prohibitions” of the Merchant Marine Act. If this blog has limitless characters, I can share my reply to Mr. Denis with you (and all interested). Thank you.

        Liked by 1 person

        • Mark Aldrich · October 22, 2015

          Go ahead and share … do it as a new reply, so the column width stays full, or email me at, if you think it is worth me writing a follow-up column. Thanks for having patience with my impatience!-Mark


        • tradeworkspr · October 22, 2015

          (Mark, this the reply I tried to post on Mr. Nelson A. Denis blog):

          NOTE: Before I begin, I have to express that I’m against the “Merchant Marine Act of 1920” because it was a farce from the beginning and with globalization and Customs Modernization act, is an obsolete legislation supported by few politicians backed up by few millionaires!!!!

          I’m a U.S. Customs Broker (lic# 27733), natural born and resident of Puerto Rico for 41 years… As an expert in the matter of International trade with 21 years of experience importing and exporting merchandise from United States, specifically from Puerto Rico Ports…

          I have to say that this article is VERY IRRESPONSIBLE because El Faro didn’t sink due to the the Jones Act a very by decision from its owner and operators ( ) and the Jones Act (Merchant Marine Act of 1920) DOES NOT “force foreign registry vessels to unload all their goods” in any USA ports in order to be transported to Puerto Rico.

          To understand the Merchant Marine Act of 1920 and how it “affect” Puerto Rico, you must first have to be a bona fide importer/merchant in Puerto Rico, know the political situation of Puerto Rico and know the U.S. Customs laws regarding to Puerto Rico commonwealth status.

          NOTE #2: The financial crisis that Puerto Rico is going thru right has been caused by unscrupulous and corrupt politicians who have managed inefficiently the country for the past 40 years (but in a microscope, this situation started since Luis Munoz Marin era and his futile project “Operacion Manos a la obra”). The decade from 1970 to 1979 marked the beginning of the crisis due to the collapse of “Operacion Manos a la obra.” And the oil embargo of 1973. Between 1976 and 1979 there was a “recovery”, but in 1976 – After his first four years as governor, Hernández Colón doubled the national debt, and substantially increased the number of employees in the public service. All this led to a deterioration of the credit of the island despite the austerity measures enacted at the end of its mandate. His administration began the practice of balancing the budget with loans. Immediately another recession accelerated between 1980 and 1983.

          In 1981 – In his eight years in power, and in the midst of a recession that included federal austerity measures and cuts Carlos Romero Barcelo added $ 3.106 million debt, equivalent today to $ 8.780 million.

          1987 – a tax reform that raised taxes while the tax benefits were reduced legislated until then is established.

          1993 – 2000 – The government of Pedro Rossello Gonzalez was distinguished by major infrastructure projects that in eight years almost doubled the national debt. Among the flagship projects is the Urban Train, the Health Reform and Superacueducto. The fiscal deficits in the budgets and increasing public debt provoked an intense debate on the extra-debt. Rossello Gonzalez used about a third of the loans made to pay for budget deficits he faced.

          Overall, the government has been in crisis since 1973 to the present and the “recovery” was not was a slowdown in the dominant economic degradation.

          The Jones Act is a federal statute that requires all goods transported by water between U.S. ports to be carried on ships built in America, owned by citizens, and crewed by U.S. residents. The law is named for the early-20th century Senator Wesley Jones, a Republican from Washington. Jones facilitated the law’s passage to secure his state’s role in transporting goods to Alaska. Is it any surprise that a senator from a coastal state, with many voters and potential donors employed by a large ship-building industry, was in favor of a law that kept out foreign competition? For the same reason, senators today from coastal states fight to keep this ancient law on the books (as I mentioned in the beginning).

          The Merchant Marine Act of 1920 “el cabotaje” only affect Puerto Rico on cargo moving between the continental US and Puerto Rico ONLY; this is because under U.S. Customs laws (and U.S. Congress) among the U.S. possession only Puerto Rico is PART OF THE U.S. CUSTOMS TERRITORY. This IN “rice and beans” means that Puerto Rico CAN receive cargo from international origins directly to its ports around the island … and so been since the 1900s!!!!

          Here are the fact (regulations) on the matter:

          – 19 CFR §101.1 Customs territory of the United States. “Customs territory of the United States” includes only the States, the District of Columbia, and Puerto Rico….

          – Harmonized Tariff Of the United States – General Notes: Customs Territory of the United States. The term “customs territory of the United States”, as used in the tariff schedule, includes only the States, the District of Columbia and Puerto Rico….

          – 19 CFR §7.2 Insular possessions of the United States other than Puerto Rico. (a) Insular possessions of the United States other than Puerto Rico are also American territory but, because those insular possessions are outside the customs territory of the United States, goods imported therefrom are subject to the rates of duty set forth in column 1 of the Harmonized Tariff Schedule of the United States (HTSUS) except as otherwise provided in §7.3 or in part 148 of this chapter. The principal such insular possessions are the U.S. Virgin Islands, Guam, American Samoa, Wake Island, Midway Islands, and Johnston Atoll. Pursuant to section 603(c) of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union With the United States of America, Public Law 94-241, 90 Stat. 263, 270, goods imported from the Commonwealth of the Northern Mariana Islands are entitled to the same tariff treatment as imports from Guam and thus are also subject to the provisions of §7.3 and of part 148 of this chapter.

          (b) Importations into Guam, American Samoa, Wake Island, Midway Islands, Johnston Atoll, and the Commonwealth of the Northern Mariana Islands are not governed by the Tariff Act of 1930, as amended, or the regulations contained in this chapter. The customs administration of Guam is under the Government of Guam. The customs administration of American Samoa is under the Government of American Samoa. The customs administration of Wake Island is under the jurisdiction of the Department of the Air Force (General Counsel). The customs administration of Midway Islands is under the jurisdiction of the Department of the Navy. There is no customs authority on Johnston Atoll, which is under the operational control of the Defense Nuclear Agency. The customs administration of the Commonwealth of the Northern Mariana Islands is under the Government of the Commonwealth.

          (c) The Secretary of the Treasury administers the customs laws of the U.S. Virgin Islands through the U.S. Customs and Border Protection. The importation of goods into the U.S. Virgin Islands is governed by Virgin Islands law; however, in situations where there is no applicable Virgin Islands law or no U.S. law specifically made applicable to the Virgin Islands, U.S. laws and regulations shall be used as a guide and be complied with as nearly as possible. Tariff classification of, and rates of duty applicable to, goods imported into the U.S. Virgin Islands are established by the Virgin Islands legislature.

          As you can see, the Jones Act / Merchant Marine Act of 1920 didn’t sink El Faro, it was an unfortunate event where lives where loss due to BAD DECISIONS from El Faro owners. It is difficult to understand the Jones Act / Merchant Marine Act of 1920 on how affect Puerto Rico, but “Cabotaje”, only affects Puerto Rico on purchases that are made directly to US suppliers … all citizens and businesses in Puerto Rico can do purchases from international countries (provided they comply with the laws and customs regulations of the United States …). As a U.S. Customs Broker we provide customs clearance services on a daily basis to our clients (U.S. based and local resident importers) for all their merchandise (ocean and air freight) purchased from international supplier and ship directly to Puerto Rico.

          Air Freight from Germany and other countries from Europe flight directly into Luis Muñoz Marin International airport via international air carrier (British Airways, Condor Airlines, Martin Air, etc..) without a stop in Miami or any other U.S. Airport..

          On the ocean freight side, there are several international agencies in Puerto Rico that represent international ocean carriers and their foreign registered vessels that arrives on a weekly basis (each day of the week) from many international ports:


          As an example, check a shipment we had to cleared customs that arrived directly from Colombia:

          This other one, form a weekly cargo we clear from Canada:

          Last but not least, we also clear all the “Black Label” that Puerto Ricans love so much lately. The Brand owner in Puerto Rico is our client.. it comes directly form Scotland:

          In summary, Puerto Rico importers/merchant are not FORCED to buy and/or ship merchandise from or via USA port exclusively… I have the fact to prove it as it is part of my business.. Polititians use it as an excuse because no one understand it and they look good saying they are doing something about the Jones Act… In order to understand and progress, well educated importers look to “supply chain management” and logistics diversification thru international markets…. El Faro only has merchandise for U.S. brand stores that have their distribution depots in the east coast and some car owners that ship or bought their cars in U.S… we didn’t starve due to El Faro unfortunate loss… Please get the facts right.. if you need my assistance on this matter, don’t hesitate to contact me at your convenience:


  4. Pingback: Today in History: October 1 | The Gad About Town

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