HQ 0111130 - Bunkers; Entry; Report of Arrival; 19 U.S.C. 1433, 1441 - United States International Trade Commision Rulings

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HQ 111130

August 15, 1990

VES-5-07-CO:R:P:C 111130 GV

CATEGORY: CARRIER

Mr. Jeff Patrick
Marine Dept. Manager
Geo. S. Bush & Co., Inc.
Post Office Box 8829
Portland, Oregon 97208

RE: Bunkers; Entry; Report of Arrival; 19 U.S.C. 1433, 1441

Dear Mr. Patrick:

This is in response to your letter dated June 18, 1990, regarding the ramifications of beginning a container carrier service between the Far East and Cuba.

FACTS:

Your company has been approached by a container carrier in Japan, with an inquiry regarding the ramifications of beginning a service between the Far East and Cuba. They are concerned with how a service such as this may effect this carrier as a whole and in part, as per the following questions:

1) Could vessels operating between Cuba and the Far East bunker at a United States port? Would there be additional requirements, beyond the standard requirements, for any other vessel arriving from a foreign port for bunkers only?

2) Providing that none of the cargo on board the vessel was of U.S. origin, either all or in part, would the United States be concerned about the transshipment of such cargo which takes place in third countries, for vessels that do not touch in United States ports?

3) Would there be any retaliatory action of our U.S. services for operating a service such as this?

ISSUES:

1. Whether foreign-flag vessels operating between the Far East and Cuba may bunker at a United States port.

2. Whether any laws and regulations administered by the U.S. Customs Service would prohibit the transshipment of foreign- origin cargo in third countries for vessels operating between the Far East and Cuba if the vessels do not touch in United States ports.

3. Whether there would be any retaliatory action of the U.S. armed forces for the operation of a foreign-flag vessel in service between the Far East and Cuba.

LAW AND ANALYSIS:

Title 19, United States Code, section 1441, exempts certain classes of vessels from the Customs formal entry requirements. The statute provides an exemption for:

(4) Vessels arriving in distress or for the purpose of taking on bunker coal, bunker oil, sea stores, or ship's stores and which shall depart within twenty- four hours after arrival without having landed or taken on board any passengers, or any merchandise other than bunker coal, bunker oil, sea stores, or ship's stores: Provided, that the master, owner, or agent of such vessel shall report under oath to the appropriate customs officer the hour and date of arrival and departure and the quantity of bunker coal, bunker oil, sea stores, or ship's stores taken on board.

Accordingly, in regard to your first question, as long as the foreign-flag vessel operating between the Far East and Cuba arrives in the U.S. only to take on bunkers it need not go through formal entry procedures provided it departs within 24 hours.

It should be noted, however, that even though the subject vessel is not required to make entry in the above-stated circumstances, pursuant to title 19, United States Code, section 1433(a)(1)(A) (19 U.S.C. 1433(a)(1)(A)) the master of the vessel must still immediately report the vessel's arrival to Customs at the nearest Customs facility. Arrival is defined in section 4.2(b), Customs Regulations (19 CFR 4.2(b)), as follows:

...the time of arrival of a vessel shall be that time when she first comes to rest, whether at anchor or at a dock, in any harbor within the Customs territory of the United States.

The report of arrival may, by regulation, be made by any means of communication (section 4.2(a), Customs Regulations (19 CFR 4.2(a)). Should the vessel remain in port for longer than the specified 24-hour period, formal entry would have to be made with the local Customs office.

We assume from your letter that the vessel in question is Japanese-flagged. Should the vessel be registered under the flag of another foreign country, you should know that the U.S. Coast Guard imposes various additional requirements and/or prohibitions regarding the entry into U.S. ports of vessels registered to, owned or operated by, chartered by or crewed from certain communist countries (e.g., People's Republic of China). We suggest you contact that agency regarding these requirements.

In regard to your second question, no law administered by the Customs Service would prohibit such an activity. The laws and regulations administered by the Customs Service would only come into play in the event the vessel entered a port within the Customs territory of the United States (defined in section 101.1(e), Customs Regulations to include only the States, the District of Columbia, and Puerto Rico), and/or the cargo entered the commerce of the United States.

Your third and final question refers to an area beyond the jurisdiction of the Customs Service. We suggest you contact the U.S. armed forces, specifically the U.S. Coast Guard, regarding this matter.

HOLDINGS:

1. Foreign-flag vessels operating between the Far East and Cuba may bunker at a United States port without making formal Customs entry pursuant to 19 U.S.C. 1441(4).

2. The laws and regulations administered by the U.S. Customs Service would not prohibit the transshipment of foreign- origin cargo in third countries for vessels operating between the Far East and Cuba if the vessels do not touch in United States ports.

3. Whether there would be any retaliatory action of the U.S. armed forces for the operation of a foreign-flag vessel in service between the Far East and Cuba is outside the jurisdiction
of the U.S. Customs Service. We suggest you contact the U.S. armed forces, specifically the U.S. Coast Guard, regarding this matter.

Sincerely,

B. James Fritz

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