b'In more recent times, it is likewise sensible that individuals who may faceall non-navigational staff are seamen for purposes of the Jones Act FOGHORN FOCUS liability in an American court of law will be easily subject to Americaninjury provisions. court jurisdiction. A 1983 predecessor of the current statute reflected a further possible purpose in assuring that crew members can give and un- The law does provide that the 75/25 percent rule, in theory, might be derstand orders, presumably without language complications.reduced. Section 46 USC 8103(b)(3), provides that the Secretary may waive a citizenship requirement, other than requirement that applies to On the PVA Legal Hotline, the inquiry most often references employ- the master of a documented vessel, with respect to any vessel if the Sec-ment of non-citizens to perform tasks not directly related to the naviga- retary determines, after investigation, qualified seamen who are citizens tional needs of the vesseltooftheUnitedStatesarenot narrators, wait staff, hostesses,available. There is no question dishwashers,employeden- that it would be a very heavy tertainersorbandmembers,To the extent that the Jones Act lift to invoke this exception.andsoon.Withregardto wait-staff in particular, manyis said to have arisen after Finally, any person employing PVAmembers,especiallyWorld War I for the purpose ofan individual in violation of during high seasons or whenthe law is liable to the U.S. colleges reopen, are strugglingassuring vessel and crew loyaltygovernment for a civil penalty tomaintainadequateem- of $500 for each individual so ployment of staff performingand availability in the event ofemployed (46 USC 8103(f)). non-navigationalfunctions.(Largepassengervesselsand Manyhavebeentherecentwar, it made logical sense to fishing boats have certain ex-stories,wejustcantfindceptions, beyond the scope of people willing to work for us. require American citizenship ofthis article, but which likewise fail to easily allow the use of Theprohibitiontohiringthe licensed crew necessary alien labor.)non-citizensfornon-naviga- for vessel operation as a meanstional positions arises from 46Inrecenttimes,validcom-USC 8103(b), which providesof transportation. mentators exist on both sides that Each unlicensed seamanofthereflectedissue,with [emphasisadded]mustbeastrongbeliefsthattherule citizen of the United States,validly preserves employment or an alien lawfully admitted to the United States for permanentfor American citizens, and that market forces can remedy any staffing residence, or a foreign national who is enrolled in the United Statesneed. Contrary opinions likewise exist. For the present, the law is clear Merchant Marine Academy. and long-established, as I explain to PVA Legal Hotline callers. It is noteworthy that the vast majority of visas issued for temporary labor shortages or for foreign students in American colleges, do not qualify for vessel employment, as these are not issued for permanent residence. Thus, while certain land-based restaurants and hospitality venues have used seasonal employees from overseas, these opportuni-ties are not available for vessel employment under the staffing restric-tions of 46 USC 8103(b).Even if a vessel owner can identify applicants who are legally in the United States with permanent residence confirmed, 46 USC 8103(b) even further limits the employment of this second category of eligible unlicensed seamen (i.e., lawfully in U.S. for permanent residence) by providing that, not more than 25 percent of the total number ofAbout the Author unlicensed seamen on the vessel may be aliens lawfully admitted to the United States for permanent residence. Thus, by example, if a dinnerSTEVEN BERS, ESQexcursion has 10 waitstaff (assuming to be all the unlicensed seamenPVA GENERAL COUNSELon the vessel), under the 75/25 percent rule, at least eight must be American citizens, and up to two may be aliens legally in the UnitedSteven E. Bers, Esq., chairs the Employment Law and Marine States as permanent residents. Againthere is no provision for everLaw Sections of the Law Firm of Whiteford Taylor & Preston., hiring seasonal foreign students who are legally in the United StatesBaltimore/Washington, D.C. He has served as the Passenger and allowed to work for land-based employers. VesselAssociationsGeneralCounsel,advisingpassenger vessel owners in matters relating to marine and employment One might question whether the group I am calling non-navigation- matters since 1989. He may be contacted at 410-347-8724 or al may be considered as other than unlicensed seamen and thus notsbers@wtplaw.com.covered by the law. I have seen no opinion to that end, and indeed it would be a hard argument to make, as there is strong precedent that FOGHORN 14'