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U.S. Virgin Islands Open Registry – Ultra Vires and Unconstitutional

02/11/2022
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This month, the Governor of the U.S. Virgin Islands (“U.S.V.I.”), Albert Bryan Jr., signed an agreement with the Northeast Maritime Institute, a “Private Maritime College,” to establish the first open vessel registry in the United States. (Proposal ). This registry is, however, likely going to be challenged as unconstitutional. Here is why:

As a general rule, the coastwise laws apply to the United States, including the island territories. An exception to this general rule is that the coastwise laws do not apply to the U.S. Virgin Islands, due to a provision included in the Merchant Marine Act of 1920 in consideration of the territory purchased from Denmark three years prior in 1917. The Merchant Marine Act of 1920, commonly referred to as the “Jones Act”, prohibits the transportation of merchandise between coastwise points in the United States on any vessel that is not (1) owned by U.S. citizens; (2) built in the U.S.; (3) documented under the laws of the U.S.; and (4) crewed by U.S. licensed mariners. To accommodate the fledgling island and its inhabitants, Congress sought to make the U.S.V.I. an exception to the rule to permit cargo commonly transported about the Caribbean to be unladen in the Virgin Islands. Congress did not, however, provide an exception to the U.S. Constitution or the vessel documentation laws that are applicable to all U.S. states, territories, islands, and vessels.

First, under Article I, Section 8, Clause 3 of the U.S. Constitution, Congress retains exclusive power to “regulate commerce with foreign Nations.” This power must be protected to prevent a governor or private entity from usurping Congress’s power to engage in and act as a regulator in unauthorized foreign commerce. Here, Governor Bryan’s open registry is ultra vires because he is attempting to legitimize a private entity to act as a regulator in foreign commerce, a government function that the governor is also unauthorized to engage in.

Since the Acts of the First Congress in 1789, which established the only U.S. registry and still today in 2022, the function of regulating vessel documentation has been reserved to the federal government. Furthermore, since 1789 Congress has required that the master of every vessel sailing under the U.S. flag is a U.S. citizen. Under Governor Bryan’s agreement, vessels under the open registry would be able to utilize the exception to the manning requirements in the Jones Act to avoid these requirements dating back to the founding fathers.

Second, the proposal usurps the President’s Article II powers. The U.S. Coast Guard (“USCG”) is within the Executive Branch and under the command of the President. The Governor’s actions, however, erodes Presidential power by impliedly using and committing the USCG to perform substantially more functions and operations in the upkeep of a foreign fleet than currently authorized or required – at the expense of the U.S. taxpayers that are funding such operations. Authority to command the USCG personnel and resources, or commit the same to perform functions or duties, is reserved to the federal government. And yet, the proposal provides “[a]s the U.S. flag state administrator, the U.S. Coast Guard (USCG) is well-suited to take a leadership role in the oversight and compliance strategy of this new U.S.V.I. registry” in other words – USCG personnel and resources.

Third, Article I, Section 8, Clause 10 provides that Congress has the power to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations” This Constitutional power is violated by the rouge Governor in his attempt to authorize a private entity to regulate and maintain a registry of foreign vessels, corporations, mariners, and commerce.

Again, these functions have all been expressly reserved to the federal government. Furthermore, there may be an argument that by establishing and maintaining a private merchant navy, the actions violate Article I, Section 8, Clause 13 whereby the power “[t]o provide and maintain a Navy” is expressly reserved to Congress.

Permitting this open registry to exist violates every reasonable interpretation of field preemption. These Constitutional violations can be quelled by either (i) Congressional action, or (ii) Presidential proclamation. First, Congress may use its “Territory or other Property” power of Article IV, Section 3, Clause 2 to prohibit this affront to the Constitution.  Second, if Congress fails to act, President Biden may, “declare by proclamation that the coastwise laws apply to the Virgin Islands” as provided by 46 U.S.C. § 55101(3). Either action would nullify the basis of any argument that could be brought by the Governor or the Northeast Maritime Institute.

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