Alaska journalist who had reported on PVSA didn't think it applied to her

[GTJ]

2 hours ago, JRG said:

In the contract of the cruise, is the cruiser advised that they are responsible for compliance for PVSA, or just the fine associated with it (buried with the fine print of the contract, no pun intended)?

Some great questions to ask! Some general principles of transportation law helps. The two relevant sources of law are the statutes and regulations enacted and adopted by the government, and any applicable contracts between persons. A "ticket" is shorthand for a "ticket contract" or "contract of carriage," and is the applicable in these cases. The PVSA, a statute, and its implementing regulations seek to regulate transportation by sea, and it places responsibility for compliance with the vessel, not on individual passengers. Note that the companion statute, the Jones Act (which regulates the transportation of cargo), also places responsibility for compliance with the vessel, not with the cargo shipper. So one has to look at the ticket for any authority of the vessel to obtain reimbursement from the passenger. And ticket contracts typically do include such clauses. For example, section 2(a)(iii) of the Holland America Line ticket contract, which outlines "guest's obligations," states in relevant part: "You will be subject to any fine or other costs incurred by Carrier which result from improper documentation or noncompliance with applicable regulations, which amount may be charged to Your stateroom account and/or credit card." While carriers are not given carte blanche for putting anything in their contracts--unconscionable provisions and other provisions that generally diminish a common carrier's duties to its passengers might be stricken--this is a reasonable provision that would almost certainly be enforced by a court if litigated. So yes, passengers are typically advised that that they are responsible for the consequences of causing the vessel to not comply with the PVSA.

 

3 hours ago, JRG said:

Just to make my point clearer,  do the cruise lines really have it right in passing this fine on to the cruiser if the cruiser has not been properly advised at point of booking?,

Suppose a cruise line forgot to include such a provision in its ticket contract? Then there would no easy means for the vessel to claim reimbursement from the passenger. It might try to do so on general tort principles (i.e., the passenger caused harm to the vessel, so the vessel has a right to recovery), but given that passengers have no duty to remain captive to a vessel it seems to me unlikely that a court would allow recovery. After all, the cruise line could have inserted a fine recovery provision in its ticket contact!

 

3 hours ago, JRG said:

If so, is the cruiseline potentially in breach of contract for not advising or disclosing or some other tort of deciept, without making any specific allegations.

I am not quite sure if I understand this question. But placing a provision in the ticket contract, and providing the ticket contract to passengers and conditioning their transportation on acceptance of the ticket contract terms, is generally sufficient. Do cruise vessel passengers actually read the terms of the ticket contract? That's the same question to be asked of airline, railroad, and bus line passengers. The answer: most do not (I am in the small minority that does read the terms). But they can't escape the terms simply by not reading them.

 

3 hours ago, JRG said:

It may give rise to the past questions as to how many Alaskans have done this accidentally in the past and been fined or not fined.

I doubt it having been much of an issue. Most Alaskans would rely upon the Alaska Marine Highway, an American flag carrier, for point-to-point transportation. Travel via cruise vessel would require paying the full fare for transportation between Seward or Whittier and Vancouver, even for a partial cruise, and would likely be more expensive than the Alaska Marine Highway fare. Moreover, only a small portion of cruise line passengers are even aware of the possibility of taking a partial cruise (again, I am in the small minority, having done so . . . but in compliance with the PVSA requirements).

 

3 hours ago, JRG said:

Is the cruise line responsible for identifying this at point of booking, like a travel agent would, could or should.  If so, then we should have the same type of warnings that exist for other CPB and inspection warnings related to hazardous items, health issues, alcohol, etc,etc,etc.

Yes, the cruise line is responsible. That responsibility comes into play both when a passenger seeks a partial cruise and when booking back-to-back cruises. (In the latter case, it is common for cruise lines to reposition vessels from southern California to Vancouver at the start of the summer travel season. These cruise lines will offer cruise itineraries from San Diego or Los Angeles to Vancouver for this repositioning, itineraries that are PVSA compliant. But if a passenger books both a repositioning cruise and the subsequent cruise from Vancouver to Seward or Whittier, back-to-back, then the itinerary is non-compliant. Cruise lines review their manifests for such back-to-back bookings and contact passengers to advise them to cancel one booking or the other.) U.S. Customs and Border Protection does provide such information and warning on its website and in the more detailed information document one can download from that website. See http://help.cbp.gov/s/article/Article-23.

 

3 hours ago, JRG said:

It seems to me that PVSA Perps,  whether knowingly or unknowingly,  should at least be given an Amnesty Bin at the embarkation process so are not subject to arrest.

This is not a criminal offense where anyone would be arrested (but if it were, it would be the master of the vessel--the captain--who would be liable, not the passenger).

 

3 hours ago, JRG said:

If they (cruiselines) do not have things contractually right,  will the cruise lines reimburse passengers in the past years of cruises who have had this fine passed on to them if it were to be deemed actionable at a class basis.

If the cruise line did wrongly take reimbursement from a passenger, then the passenger might recover in court. However, the statute of limitations (usually six years for contract issues, though the cruise lines may have provisions in their ticket contracts that further limits the time period. Again using Holland America Line as an example, section 17(A)(ii) of the ticket contract states in relevant part: "No claim of any kind . . . shall be brought against Carrier unless . . . (1) written notice giving full particulars of the claim is delivered to the Carrier within 15 days of the actual or scheduled termination date of the Cruise, Cruisetour, or post-cruise Land Trip, whichever occurs first as specified in connection with this Contract, [and] (2) legal action on such claim is commenced within 1 year from such scheduled termination date."

[JRG]

1 hour ago, GTJ said:

This is not a criminal offense where anyone would be arrested (but if it were, it would be the master of the vessel--the captain--who would be liable, not the passenger).

 

This thought originated from considering whether or not Passengers were given an "arms length" treatment as compared to other restricted items, which would ironically also harm a vessel.  Hence the "Amnesty Bin" ,  Could passengers be given a chance to pre-pay the fine to avoid arrest, for example.

 

Clearly Alaskan residents are not getting a level playing field here.  

 

My greater PVSA legal question however related more to Ensenada:

 

Does the fact that the State Department classifies Mexico as a dangerous place to travel (don't know exact nomenclature here) conflict with the CBP using Mexico as a work-around to PVSA in such a matter to create basis (or the impetus) for a legislature or judicial or executive change order.?

 

In other words, our PVSA law seems to be making US Cruisers  embark and disembark in a country while simultaneously our U.S. Government is saying we shouldn't travel there. 

 

Have you ever heard this argument before?

 

 

[GTJ]

1 hour ago, JRG said:

This thought originated from considering whether or not Passengers were given an "arms length" treatment as compared to other restricted items, which would ironically also harm a vessel.  Hence the "Amnesty Bin." Could passengers be given a chance to pre-pay the fine to avoid arrest, for example.

It is unlikely that a vessel would agree to accept a fee from a passenger as inducement for it to violate the PVSA. Yet given that the violation is resolved by the routine payment of a fine--think of it in the category of a parking ticket--it would, at least economically, it would be in the interest for a cruise line to consider doing so it were to be worth their while. But the standard answer from the cruise line would be "no, we will not participate in knowingly violating the PVSA" (even though it would knowingly do so in the event of an unforeseen emergency, e.g., medical situation).

 

2 hours ago, JRG said:

Clearly Alaskan residents are not getting a level playing field here.

True. The interests of individual Alaskans who desire to travel between U.S. ports are being denied that opportunity. More critically, Alaska businesses are losing commerce to Canadians because the vessels have to include a Canadian port in their itineraries to be PVSA-compliant. The PVSA was enacted to benefit the American maritime industry, not individuals and not American commerce generally.

 

2 hours ago, JRG said:

My greater PVSA legal question however related more to Ensenada: Does the fact that the State Department classifies Mexico as a dangerous place to travel (don't know exact nomenclature here) conflict with the CBP using Mexico as a work-around to PVSA in such a matter to create basis (or the impetus) for a legislature or judicial or executive change order.? In other words, our PVSA law seems to be making US Cruisers  embark and disembark in a country while simultaneously our U.S. Government is saying we shouldn't travel there.

No relevance. Ensenada is usually used as a foreign port of call on closed-loop Hawaiian cruises, and no passenger is obligated to alight at the port. I don't believe that there are routinely any cruise itineraries that begin or end at Ensenada, but even if there were it would make no difference. There are airlines and bus lines that travel between the United States and Mexico regularly, and no special treatment is given to them because of State Department advisories. If there were a concern, then CBP would simply tell the cruise line to employ American-built vessels, registered with the United States, and staffed with American crews. Then no need to stop in Mexico. That's what NCL did in Hawai'i.

[JRG]

57 minutes ago, GTJ said:

3 hours ago, JRG said:

Clearly Alaskan residents are not getting a level playing field here.

True. The interests of individual Alaskans who desire to travel between U.S. ports are being denied that opportunity. More critically, Alaska businesses are losing commerce to Canadians because the vessels have to include a Canadian port in their itineraries to be PVSA-compliant. The PVSA was enacted to benefit the American maritime industry, not individuals and not American commerce generally

 

 The greater test which fails Alaskans, (and other victims of PVSA inequities) is best described

(IMO) in the Doctrine of Substance vs. Form.

 

(Simulated)

 

If I had to draw up a desperately reasonable strategy in defense of the passenger,  I would first draw out the philosophical and ethical "Inappropriateness", of enforcing the PVSA upon Alaskan residents, in this context, and the video testimony of CBP close to tears (purportedly) while arresting a local resident, gives evidence of that human emotion. (if it really happened that way).  

 

Of course this means nothing to the court, but it draws the jury (the cc audience) to feel the "inappropriateness" and silliness of the whole affair, wishing that they could interpret the jury instructions with the appropriate latitude.

 

And like a good lawyer from a John Grisham novel, the defense attorney introduces case precedent to knock the prosecution off-balance and the audience, the judge, the jury and the defendant adjourn to reconsider testimony when guilt or innocence and possible render further precedence to future cases. 

 

Gregory v. Helvering, 293 U.S. 465, 469-470 (1935).  “The substance over form doctrine applies when the transaction on its face lies outside the plain intent of the statute and respecting the transaction would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose.”

 

note:  The doctrine is used and applies largely to IRS code.  But it can be argued to have the same underlying principle in civil and maritime law as well.

 

 

[GTJ]

3 minutes ago, JRG said:

If I had to draw up a desperately reasonable strategy in defense of the passenger,  I would first draw out the philosophical and ethical "Inappropriateness", of enforcing the PVSA upon Alaskan residents * * *

CBP enforces the PVSA against the vessel, not against the passenger. In turn, the cruise line enforces its ticket contract (the provision which allows it to be reimbursed) against the passenger. Any disagreement between the cruise line and the passenger is then settled by mandatory arbitration. No jury. Arguably the deck stacked against the passenger in having the courts closed and requiring resolution through arbitration.

 

I think that Gregory v. Helvering is actually more appropriate for its step transaction doctrine, at least as it is applicable to back-to-back cruises. That is, the cruise line cannot avoid application of the PVSA by breaking a cruise from San Diego to Whittier into two separate steps (i.e., San Diego to Vancouver, Vancouver to Whittier), much in the same manner that the doctrine is applied in tax law disputes.

[taznremmy]

What needs to happen is for everyone to start writing their representatives in Washington to repeal the PVSA on a permanent basis.  It is old and no longer relevant.

[cynt]

Why didn't she just miss the ship as it departed Juneau? She should have acted like a pier runner and chased the ship. Too bad she didn't get on CC to check and see how to do this. LOL! 

 

I would have packed some old clothes and left them and an old suitcase in the room. In my backpack I would have my real clothes and important papers and documents and whatever else I needed. 

 

It really baffles me that people don't ask more questions about things they plan on doing the first time they experience something new.

[DaveOKC]

13 hours ago, taznremmy said:

What needs to happen is for everyone to start writing their representatives in Washington to repeal the PVSA on a permanent basis.  It is old and no longer relevant.

I fully agree with this idea!

 

[Ferry_Watcher]

If the reporter had asked about leaving the ship early during check-in, she would have been told of the consequences.  She could have decided which was the lesser of two evils - the $1,882 in fines, or missing the first couple of days of school and the cost of 2 one-way airfares from Vancouver back to Whittier.  And the flight may have been problematic if she or her son were not traveling with passports.

 

[DaveOKC]

41 minutes ago, Ferry_Watcher said:

If the reporter had asked about leaving the ship early during check-in, she would have been told of the consequences.  She could have decided which was the lesser of two evils - the $1,882 in fines, or missing the first couple of days of school and the cost of 2 one-way airfares from Vancouver back to Whittier.  And the flight may have been problematic if she or her son were not traveling with passports.

 

They must have had passports or the ship would not have let them board I suspect.

 

[Heidi13]

11 hours ago, cynt said:

Why didn't she just miss the ship as it departed Juneau? She should have acted like a pier runner and chased the ship. Too bad she didn't get on CC to check and see how to do this. LOL! 

 

I would have packed some old clothes and left them and an old suitcase in the room. In my backpack I would have my real clothes and important papers and documents and whatever else I needed. 

 

It really baffles me that people don't ask more questions about things they plan on doing the first time they experience something new.

 

Sorry, that wouldn't have exempted her from the PVSA fine.

 

Pier jumpers are expected to rejoin the ship at the next port. If they left belonging in the cabin and didn't return, the cruise line could asses a charge for packing everything and either disposing or shipping back to the pax.

 

If the pax didn't rejoin the ship and disembark in another country it is still a PVSA violation.

[JRG]

2 hours ago, Heidi13 said:

Sorry, that wouldn't have exempted her from the PVSA fine.

 

True.   And that is the perfect rationale to justify allowing Alaskan residents to apply for and pay a small fee to carry a "PVSA" travel exemption card,  as issued by the State.

 

And everybody is happy, right?     

[JRG]

To finish the thought.  Then Alaskan residents would have a level playing field which allows them to enjoy a highler level of travel quality,  not presently available , and they keep their tourist spending in their home country.  

 

And CBP agents who live and work and play around port areas and know residents are 100% comfortable with the integrity of the laws that they are asked to enforce. 

 

This is important.  

 

 

[JRG]

19 hours ago, GTJ said:

Any disagreement between the cruise line and the passenger is then settled by mandatory arbitration. No jury.

 

The doctrine has a certain portability, that allows it to be used at all levels, if for no other reason to draw the ironic inequities that are the source of conflict.

 

Its most powerful when all other event criteria are 'just falling short' of merit, because it can be applied to all of the failing criteria events and "taken as a whole" may sway opinion.  Even in a JAMS session.

 

 

(idea presented here)

 

If I had to solve the PVSA snafus that are imposed upon Cruisers, yet still maintain the barebone cabotage aspects, then I would favor Congress passing a stimulus bill to offer to qualified CBP travelers (i.e. Global Entry, Nexus), to apply for a CBP issued "PVSA" exemption card.

 

We pay up to $400 for credit card with travel benefits,  I think CBP should "Turn a problem into a Cash Cow  (with annual revenue streams) for $500 pp and this would let cardholders travel without violating PVSA.   

 

I don't buy into the old problems of having to zero out a ship,  technology has come to the rescue.

 

(I just came up with this idea, so I am thinking it through).  

 

 

Edited August 23, 2023 by JRG

[GTJ]

1 hour ago, JRG said:

I think CBP should "Turn a problem into a Cash Cow  (with annual revenue streams) for $500 pp and this would let cardholders travel without violating PVSA.

Ordinarily I would say that this is a problem for Congress to resolve, not CBP. Yet, some of the most important rules have been made up by CBP without explicit Congressional authority. Take a read of the explanation of the current administrative rule, 19 C.F.R. § 4.80a, as was adopted by CBP's predecessor, U.S. Customs Service, as published in the Federal Register in 1985. 50 Fed. Reg. 26981 (July 1, 1985), http://www.govinfo.gov/link/fr/50/26981. Despite all the language purporting to have ascertained Congressional intent, it is clear to me that Customs is just making things up. On that ground, what would stop CBP from making up such a crazy credit card scheme?!

[JRG]

17 hours ago, GTJ said:

Despite all the language purporting to have ascertained Congressional intent, it is clear to me that Customs is just making things up.

 

I read the whole thing.  The 24 hr. rule seems to be an example of  an "adoptive interpretation", but I could be wrong.  I am sure you are aware of the transcript I referenced from 1998 from the House Sub-Committee on Coastal  and Marine Transportation and the quotes made by the Retired Admiral USCG.

That transcript is public information and describes the horror of lobbying power in action.  Shameless.

 

Students of the game have the advantage of reading the thoughts and actions of players who probably never realized that their decisions would be analyzed and scrutinized 23 years later.   More importantly,  the economic data can be presented as evidence,  without under interference so that the decisions can be made out of intelligence,  and not fear, or allegiance.

 

The Transparency revolution and other changing socio-demographic external forces has created a better environment for changing PVSA.

 

Its up to the CBP and USCG Top Brass to open up the lines of communication and let the public know how they feel about how "adoptive interpretations" .  Can they be improvised to better reflect the "conscience of not just the marine industry," but the other marine industries,  commercial or leisurely.

 

As pointed out in post a while back,  the emergence of the vacationing cruiser who cruisers not to travel as a passenger, but vacation as a passenger,  requires a set of Coastwise Transportations laws that are better suited for the Cruising Industry.    We are trying to make them work under laws that were enacted when Vacationing Voyages were not part of the culture and did not comprise a marine industry in and of itself.

 

I think this link is helpful to gauge how the USCG feels about current topics and I think it is a good website to learn more.

 

https://www.dco.uscg.mil/Cruise-Ship-National-Center-of-Expertise/

 

 

 

 

[JRG]

20 hours ago, GTJ said:

On that ground, what would stop CBP from making up such a crazy credit card scheme?!

 

Legally-maybe Consent Decree

 

Literally-'the words crazy credit" (it wasn't what I meant), thinking more of a hall pass for good students.

 

Realistically- Potential denial of a well funded feasibility study, Pro-forma and past 50 years in increments, data overlayed onto the milestone markers of decision making.

 

The irony is that, to pursue the idea of a PVSA Exemption Card, the existing Trusted Traveler Program has already qualified frequent travelers and that facilitates instantaneous implementation.  (i.e.  Global Entry = PVSA Exemption) for such a program to be easily put in place, on a beta basis to gauge the interest levels of all parties, but in a market which is not or is under-regulated from a consumer standpoint anything can happen wit respect to what is 'marketed to the consumer'

 

If such rights were bestowed upon the TTP member to be PVSA Exempt, then cruise lines can theoretically start marketing trips, that effectively let TTP cardholders 'Jump Ship' to their homeport.  That "Test Marketing" Opportunity then allows the cruise lines (CLIA?) but more importantly, all parties, to assess the new markets that would be available to the Drive-To-Port Customers who (for example 1 of many) want to take family from SD to Seattle and not visit a foreign Country, and then turnaround and go back the same way a few days later, keeping most of the billions in tourist revenue in the country.  Likewise for the traveling baseball fans who want to follow road trip segments.  (Fly-In Customers).  

 

If such a PVSA Exemption Program was indeed SELF-FUNDED  -by an annual TTP fees Cash In-Flows,  and in such windfall fashion, how could the decision makers look the other way if the idea walked itself into the nearest district office, or was emailed to the USCG.

 

I'm willing to listen to discussion in the opposition as to why such a plan would not work.  After all,  do the USCG and CBP personnel get fined when they return home without visiting a distant port, no they are exempt.  (I think)

 

Edited August 24, 2023 by JRG