Potential Longshoreman's strike could impact cruise lines in Vancouver and Victoria.

[dawnvip]

Longshoremen have issued 72 hour strike notice, which would mean job action beginning Saturday July 1.

 

https://www.vancouverisawesome.com/transportation/port-strike-notice-threatens-victoria-cruise-industry-7211276

 

[tscoffey]

So what happens to that nefarious PVSA foreign port requirement if ships out of Seattle, Whittier, etc. are unable to dock there?

[GTJ]

57 minutes ago, tscoffey said:

So what happens to that nefarious PVSA foreign port requirement if ships out of Seattle, Whittier, etc. are unable to dock there?

Absent any action to change the law, the statute would remain in effect. The statute does not require that vessels sailing out of U.S. ports to call at Vancouver. If the port of Vancouver is closed, then the vessel master might, instead, call at a foreign port other than Victoria, such as Vancouver or Prince Rupert. Perhaps some others with expertise in B.C. maritime matters might note if other ports, such as Bella Bella, might be practicable for a short call. If there is a shortage of berthing space these ports might limit the amount of time that passenger vessels would be allowed to call at those ports, so that the space might be shred by multiple vessels in sequence. Passengers on the vessel need not alight at the foreign port at which the vessel calls for the itinerary to be compliant with the PVSA. I see some potential for logistical shuffling, and there might be some temporary change in the law (either legislatively or administratively), but I don't foresee the Alaska cruise industry shutting down on account of actions in Victoria.

[dawnvip]

I haven't read the law, but like most things, there may be a clause to get around the requirements due to "unforeseen circumstances". I would put job action up there with weather, covid, etc.

[larrybritt]

And of Course we are flying out July 1st to Vancouver for a Princess cruise on July 4th. This news sucks. I would hate to get all the way there from the East coast only to have it cancelled. Doesn’t seem promising.

[CruiserBruce]

2 hours ago, tscoffey said:

So what happens to that nefarious PVSA foreign port requirement if ships out of Seattle, Whittier, etc. are unable to dock there?

A ship sailing out of Whittier on a one way to Vancouver doesn't have the foreign port requirement, because it sails TO a foreign port. 

 

If Vancouver closes to cruise ships due to a strike, that is a different question.

[GTJ]

5 hours ago, dawnvip said:

I haven't read the law, but like most things, there may be a clause to get around the requirements due to "unforeseen circumstances".

The basic law is not particularly long, and you can read it here.

• 46 U.S.C. § 55103 (statute) http://www.law.cornell.edu/uscode/text/46/55103
• 19 C.F.R. § 4.80a (implementing regulation) http://www.law.cornell.edu/cfr/text/19/4.80a

You can also download guidance from U.S. Customs and Border Protection on the subject from here: http://www.cbp.gov/document/publications/passenger-vessel-services-act. There are a number of statutory exceptions, most of the relevant exceptions relating to the transportation of passengers to and from the Virgin Islands, American Samoa, and the Northern Mariana Islands, 46 U.S.C. § 55101(b), and Puerto Rico, 46 U.S.C. § 55104. There is no general exception for unforeseen circumstances, possibly because such a clause would undercut the strength of American longshoremen, an intended beneficiary of the law. It would be up to Congress and the administration to take action (which could happen, given that Canadian longshoremen are not an intended beneficiary of the law).

[njhorseman]

9 hours ago, GTJ said:

Passengers on the vessel need not alight at the foreign port at which the vessel calls for the itinerary to be compliant with the PVSA.

Several years ago technical stops were deemed via regulatory fiat to no longer satisfy the foreign port requirement of the PVSA, which is why you now see actual port calls at Ensenada Mexico on roundtrip cruises from West Coast ports to Hawaii rather than the brief technical stops that were formerly made. Passengers now must have the opportunity to disembark in the port for that port call to satisfy the PVSA foreign port requirement.

I believe the change came about as a result of pressure applied by NCL, which of course has the only US-flagged ship in Hawaii. They felt that the other cruise lines were unfairly being allowed to do cruises whose only ports of call were in Hawaii with foreign-flagged ships, while NCL had  to comply with the regulatory and expense burdens of having a US-flagged ship.

I recall seeing the proposed regulatory amendment published in the Federal Register.

 

Edited June 30, 2023 by njhorseman

[GTJ]

21 minutes ago, njhorseman said:

Several years ago technical stops were deemed via regulatory fiat to no longer satisfy the foreign port requirement of the PVSA, which is why you now see actual port calls at Ensenada Mexico on roundtrip cruises from West Coast ports to Hawaii rather than the brief technical stops that were formerly made. Passengers now must have the opportunity to disembark in the port for that port call to satisfy the PVSA foreign port requirement. * * * I recall seeing the proposed regulatory amendment published in the Federal Register.

 

Very good point to raise. When I was writing the issue had been on my mind, but not wanting to go too far into the weeds I worded my response to note that the passengers need not actually alight without addressing whether the passengers must be given the opportunity to alight (which they might then actually forgo). The issue of technical stops is not in the statute, and I cannot recall seeing anything relevant presently within the implementing regulations.

 

I think that you may be referring to a proposed interpretation by Customs and Border Protection of the coastwise laws published in the Federal Register on November 21, 2007, beginning on page 65,487. See http://www.govinfo.gov/app/details/FR-2007-11-21/E7-22788 CBP claimed this to be just an interpretation, and not a change in the law, and there was no actual proposed regulatory amendment (an aspect that was criticized by some as an attempt by CBP to evade procedural requirements). The text of the proposed interpretation then proposed is as follows.

 

CBP interprets a voyage to be “solely to one or more coastwise ports” even where it stops at a foreign port, unless the stop at the foreign port is a legitimate object of the cruise. CBP will presume that a stop at a foreign port is not a legitimate object of the cruise unless:

(1) The stop lasts at least 48 hours at the foreign port;

(2) The amount of time at the foreign port is more than 50 percent of the total amount of time at the U.S. ports of call; and

(3) The passengers are permitted to go ashore temporarily at the foreign port.

Accordingly, CBP proposes to adopt an interpretive rule under which it will presume that any cruise itinerary that does not include a foreign port call that satisfies each of these three criteria constitutes coastwise transportation of passengers in violation of 19 CFR 4.80a(b)(1).

 

The purpose of the proposed interpretation was to protect Norwegian Cruise Line, and its American-flagged vessels, from competition by other cruise lines with foreign flag vessels that were making short calls at Ensenada, Baja California, as part of their closed-loop cruise itineraries between California ports and the Hawaiian islands. However, CBP failed to recognize the larger implications of the proposed interpretation on other cruise itineraries, including those itineraries that included stops in Portland, Maine. See http://www.capecodtimes.com/story/news/local/2008/02/26/storm-brews-over-port-rules/52605206007. A total of 343 comments were received by CBP, see http://www.regulations.gov/document/USCBP-2007-0098-0001/comment, and no action is known to have been taken by CBP.

 

You might also be recalling a discussion during the pandemic about cruise vessels making technical calls in Canada, but that issue related to the closing of Canadian ports. It had been proposed that cruise vessels be permitted to call in Canadian ports for a technical stop, without passengers being permitted to alight (so as to satisfy Canadian concerns of keeping passenger vessels isolated from the country). That, of course, related to Canadian law, rather than the PVSA. See http://www.openjaw.com/newsroom/cruise/2021/03/16/allow-technical-cruise-stops-in-can-or-lose-billions-industry-advocates.

[MBP&O2/O]

We often used to make 'technical stops'.... usually to keep politicians from being seen to have dirty fingers 🙂

 

Can  I say this? I suppose so as apartheid is no longer with us! Common practice was to load a cargo of fruit in Capetown. The discharge ports were in the Arabian Gulf. Now at this time trading with South Africa was not seen to be politically friendly so we couldn't really be seen taking South African fruit to the 'Gulf ... could we?
To overcome this political intrigue, we loaded the cargo as normal - but all the boxes were labeled 'Product Of Botswana'! Then, en route to the 'Gulf, we stopped / anchored at Maputo. Whilst at Maputo we started a new 'Deck Log Book' and when we arrived at our first port of call the log book showed us arriving from Mozambique!
Sneaky!

Plausible deniability for the politicians?

 

[njhorseman]

9 hours ago, GTJ said:

I think that you may be referring to a proposed interpretation by Customs and Border Protection of the coastwise laws published in the Federal Register on November 21, 2007, beginning on page 65,487.

Yes, that's what I'm referring to.

 

9 hours ago, GTJ said:

CBP claimed this to be just an interpretation, and not a change in the law, and there was no actual proposed regulatory amendment

Hence my use of the words "deemed via regulatory fiat".

 

Yes, and my understanding is that because CBP considered it to be just an interpretation, a greatly modified version of the proposal that was published was ultimately put into place, without the two more onerous requirements of a 48 hour stop and 50% of the time spent in US ports, leaving just the third requirement that passengers had to be permitted to go ashore temporarily. 

[GTJ]

25 minutes ago, njhorseman said:

Yes, and my understanding is that because CBP considered it to be just an interpretation, a greatly modified version of the proposal that was published was ultimately put into place, without the two more onerous requirements of a 48 hour stop and 50% of the time spent in US ports, leaving just the third requirement that passengers had to be permitted to go ashore temporarily. 

Do you have a citation? Ordinarily it can be difficult finding specific notices in the Federal Register, but even more so when a provision is not even codified as a regulation and instead stands as an interpretation.

[Heidi13]

20 hours ago, GTJ said:

Absent any action to change the law, the statute would remain in effect. The statute does not require that vessels sailing out of U.S. ports to call at Vancouver. If the port of Vancouver is closed, then the vessel master might, instead, call at a foreign port other than Victoria, such as Vancouver or Prince Rupert. Perhaps some others with expertise in B.C. maritime matters might note if other ports, such as Bella Bella, might be practicable for a short call. If there is a shortage of berthing space these ports might limit the amount of time that passenger vessels would be allowed to call at those ports, so that the space might be shred by multiple vessels in sequence. Passengers on the vessel need not alight at the foreign port at which the vessel calls for the itinerary to be compliant with the PVSA. I see some potential for logistical shuffling, and there might be some temporary change in the law (either legislatively or administratively), but I don't foresee the Alaska cruise industry shutting down on account of actions in Victoria.

 

Bella Bella doesn't have ILWU Longshoremen, so that wouldn't prevent a call. However, it will add considerable distance onto the route from Seattle and increase the pilotage bill. The transit through Lama Passage is also rather tight for ships > 1,000'

 

Other options could be tendering into Tofino, Ucluelet or Port Hardy. However, I have never sailed these waters and don't have access to charts, so don't know what, if any, safe anchorages are available

[njhorseman]

1 hour ago, GTJ said:

Do you have a citation? Ordinarily it can be difficult finding specific notices in the Federal Register, but even more so when a provision is not even codified as a regulation and instead stands as an interpretation.

No, I don't have a citation. My recollection is that because USCBP considered it an interpretation there was nothing published in the Federal Register.

[dawnvip]

Latest news - agreement reached to protect cruise ship activity from strike action at Vancouver, Prince Rupert and Victoria.

[Fisherwoman]

https://globalnews.ca/news/9805769/bc-port-strike-cruise/

[JRG]

On 6/29/2023 at 5:55 PM, GTJ said:

The basic law is not particularly long, and you can read it here.

• 46 U.S.C. § 55103 (statute) http://www.law.cornell.edu/uscode/text/46/55103
• 19 C.F.R. § 4.80a (implementing regulation) http://www.law.cornell.edu/cfr/text/19/4.80a

You can also download guidance from U.S. Customs and Border Protection on the subject from here: http://www.cbp.gov/document/publications/passenger-vessel-services-act. There are a number of statutory exceptions, most of the relevant exceptions relating to the transportation of passengers to and from the Virgin Islands, American Samoa, and the Northern Mariana Islands, 46 U.S.C. § 55101(b), and Puerto Rico, 46 U.S.C. § 55104. There is no general exception for unforeseen circumstances, possibly because such a clause would undercut the strength of American longshoremen, an intended beneficiary of the law. It would be up to Congress and the administration to take action (which could happen, given that Canadian longshoremen are not an intended beneficiary of the law).

 

Thanks for your comment on the strike.   Can you elaborate on the highlighted section if possible?

 

Understanding the rational for the PVSA exceptions (deemed out or otherwise exempted) has been a critical topic here on CC and I have been watching it closely because it impacts the cruising industry by providing an artificial 'market' barrier to itineraries in a very very small segment of the overall cruising market such as traveling from LA to SF,   NY to Miami, etc.   The same could be argued for B2B trips and the proverbial trip to nowhere which violate PVSA laws.  I am in favor of  additional exemptions assuming that the legislature language also included the appropriate language to steamroll over customs and visas issues related to the crew.   As one fine poster put it,  governments can do whatever they want. 

 

Now that we know that exceptions can be deemed out of the PVSA or  "interpretated" pretty much any the CBP wants,  we know that it is possible to 'carve out cruiseships' from the PVSA as long as a 'bona fide' reason can be presented to legislature to make the appropriate 'deeming out' or perhaps provide better guidance for 'interpretation'.   A pandemic which impacts the economy of Alaska or a threated port strike by foreign port workers exposes the vulnerability of the law.

 

The US is living with a grandfathered cabotage law that is snagging a portion of the cruisers "Manifest Destiny" and more importantly snagging a portion of the cruisers wallet by making us visit a distant port.

 

If the last vote before Congress and the House was unanimous to bypass the PVSA once more,  the next time should be that much easier.

 

For this very very limited example above, quantifying the effect on the American longshoremen seems to present more of a pro-forma model that may suggest  American Longshoremen would benefit from the slightest additional exemptions, (as described above),   as opposed to actually being negatively affected.   (i.e.   theoretically there should be more $$work in the  US, trickling back into the US, not Canada or Mexico).

 

This analyst believes that the American Longshoreman and its union would BENEFIT from seeing some minor relaxation to this PVSA snafu and that the sky would not come falling down if additional ships or itineraries were added that did not visit a distant port.

 

 

 

 

 

Edited July 1, 2023 by JRG

[JRG]

13 minutes ago, JRG said:

This analyst believes that the American Longshoreman and its union would BENEFIT from seeing some minor relaxation to this PVSA snafu and that the sky would not come falling down if additional ships or itineraries were added that did not visit a distant port.

 

For citation purposes on my post,  I would credit one of my primary sources as a Sr. Chief Economic Advisor to the White House who under President Bush,   wrote a white-paper op-ed describing the inequities created by the PVSA.

 

The op-ed is haunting similar to a thread I contributed to few years here where I dubbed the whole affair "The Milkshake Theory".  It just seemed like the port area of Vancouver was drinking more than its share of the milkshake. ( i.e. the revenue from billion dollar tourist industry) 

 

 

[GTJ]

43 minutes ago, JRG said:

Can you elaborate on the highlighted section if possible?

I don't think it requires much elaboration. The PVSA was enacted to protect the American maritime industry as a whole, and even if the carriers themselves were the primary object of protections, the longshoremen have always been part of that larger industry and therefore an intended beneficiary.

 

The more important aspect, which I think you're rightly focusing upon, is whether the PVSA remains vibrant given the changes in the industry, or if it can even inspire industry evolution in a favorable manner. The PVSA was enacted in an era when there were both domestic and foreign flag vessels providing point-to-point transportation, much like what exists today in the commercial aviation industry. But today, there are only a handful of ferries that provide such transportation--the most notable being the Alaska Marine Highway--with virtually all passenger ocean vessels being foreign flagged. In addition, most, but not all, of the industry consists of closed-loop cruise itineraries, rather than point-to-point transportation. The effect of the PVSA today is to require that these foreign flag vessels bring passengers--and the commerce in which they engage--to foreign ports, at the expense of having those passengers and their commerce remain within the United States. Vancouver commerce benefits greatly as a result of the PVSA. Yet that commercial aspect is ignored as the PVSA is focused entirely on the maritime industry only.

 

The exceptions for Puerto Rico, the Virgin Islands, American Samoa, and the Northern Mariana Islands are a half-hearted attempt to ease the burdens in recognition of the lack of any U.S. flag ferries providing service to these islands. Yet no foreign flag ferries have stepped in to provide that service.

 

In a broader sense, it might be argued that the PVSA is ineffective today simply because, unlike commercial aviation, there is no vibrant domestic ocean liner industry remaining. Yet, that is not entirely true. Norwegian Cruise Line might a substantial investment in having a U.S. flag vessel serving Hawai'i, an investment that would otherwise be lost if the same market were opened to foreign flag vessels. American Cruise Lines and American Queen Voyages both provide U.S. flag vessels to serve domestic cruise markets, and could be decimated were Carnival, Royal Caribbean, and NCL able to use their foreign-crewed vessels on domestic itineraries. Thus, there remains vitality today in the PVSA, in protecting the domestic maritime industry and encouraging its growth, sparse as that vitality might be.

 

The closed-loop cruise itinerary has become the tail that wags the dog. The PVSA was designed for point-to-point transportation, yet the closed-loop itineraries now dominate. The rules for these close-loop itineraries seems to have been jury-rigged to meet the industry demands as they arise, but are difficult to support on any intellectual or legal theory basis. One can make the argument that a closed-loop cruise itinerary provides no transportation--the passengers embark and disembark at the same port, so they have not gone anywhere--and therefore no cabotage concerns legitimately exist. Yet, in fact, the passengers are transported.

 

The issue that I see here is that, with the industry having largely transformed itself from the provision of expeditious (even if comfortable or luxurious) point-to-point transportation to the provision of free-spending vacations, the commercial aspects have become substantially more important. The need is to balance the interests of the domestic maritime industry and the commercial interests of port communities visited by cruise vessels. How those two competing interests should be balanced against each other I do not propose here.

[Urban trekker]

I down at Canada Place today and can report that there was no problems with the ships docking etc.