The Jones Act is a 1920 maritime law that is keeping Puerto Rico in the dark after Hurricane Fiona

There’s a ship sitting outside Puerto Rico ready to offload its cargo of diesel fuel to power the generators helping the U.S. territory recover from another devastating storm. Except, the ship can’t dock because it’s not U.S. made, owned or staffed — a requirement under a law called the Merchant Marine Act of 1920 (often referred to as the Jones Act, named after one of the representatives who sponsored it).

Currently Biden is punting, saying he isn’t sure he can issue a waiver. Critics say he can do it and he’s just stalling for time while he figures out how much a political dent it could make in his party’s midterm fortunes.

While Puerto Ricans wait for Biden to make up his mind, Grid spoke to Martin Davies, director of the Tulane University Maritime Law Center, about who wins and who loses with the Jones Act.

This interview has been edited for length and clarity.

The part of the Jones Act at issue here is what is generally referred to in maritime law as cabotage. This law says that if cargo is to be carried from one place in the United States to another place in the United States on a ship, the ship must be, essentially, U.S. built, U.S. crewed, U.S. flagged, U.S. owned. And, as far as I am aware, the U.S. has the most restrictive cabotage regulation in the world.

The idea that, if you allow foreign flag vessels to intervene in a situation such as this, that’s the thin end of the wedge, and once you start you shall not stop, et cetera. That’s their argument.

The cons are the usual cons that come when you restrict competition: When there’s little or no competition for these services, they tend to be more expensive than they would be if there was competition. It makes things more expensive, especially for places like Hawaii and Puerto Rico.

And of course, there’s always a lot of political pressure to promote competition. The problem that many countries that have eased cabotage restrictions have, though, is that competition allows foreign competitors to come in and then that wipes out all the domestic providers.

That doesn’t fly anymore. It’s currently a vessel-by-vessel waiver: Can a U.S.-flagged ship provide the service that this specific foreign- or private-flagged ship is going to perform?

It comes back to the essential question: Does the need for an immediate response outweigh the fact that a U.S.-flagged vessel could provide the same response? Because if the same response could be provided by a U.S.-flagged vessel in a timely manner, then you can follow through with your commitment to the Jones Act and provide for the people of Puerto Rico. Now what the people of Puerto Rico are saying is: “It’s right there, and we need it right now.”