HQ 0110823 - The use of a non-coastwise-qualified barge as a platform for equipment used to unlade cargo from vessels - United States International Trade Commision Rulings

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HQ 110823
February 1,1990

VES-3-CO:R:P:C 110823 LLB

CATEGORY: CARRIER

Mr. Guy A. Morley
Reid and Priest
40 West 57th Street
New York, New York 10019-4097

RE: The use of a non-coastwise-qualified barge as a platform for equipment used to unlade cargo from vessels

Dear Mr. Morley:

Reference is made to your letter of February 1, 1990, which supplements the facts supplied to us in your letter of January 29, 1990, concerning the above captioned matter. You ask that we reconsider our position contained in our letter to you dated February 1, 1990.

FACTS:

It is proposed that a non-self-propelled barge which may not be documented for the coastwise trade would be purchased in Portsmouth, Virginia, and towed to the port of Newark, New Jersey. Once in Newark, the vessel would be moored at wharfside and supplied with an apparatus known as a Siwertell ship unloader. The sole occupation of the barge would be in the unloading of cargo vessels at wharfside. To accomplish its task, the vessel would be moved along the length of cargo vessels being unloaded. Movement would be along the corridor created between the vessel and the wharf. The second letter to us on this subject makes it clear that during the periods when the barge may be moved along the length of the vessel being unloaded, it would not have aboard any merchandise whatsoever. Any merchandise previously unloaded would already have been transferred directly to wharfside by the barge which would remain in a fixed position during actual unloading operations.

ISSUE:

Whether the use of a non-coastwise-qualified vessel, as outlined above, would constitute a use proscribed by the coastwise trade merchandise statute.
LAW AND ANALYSIS:

Title 46, United States Code App., section 883 (46 U.S.C. App. 883) in pertinent part, prohibits the transportation of merchandise between points in the United States embraced within the coastwise laws, either directly or via a foreign port, or for any part of the transportation, in any vessel other than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States.

Customs has held that the use of a non-coastwise-qualified crane vessel to load and unload cargo is not coastwise trade and does not violate 46 U.S.C. App. 883, provided, that any movement of merchandise is effected exclusively by the operation of the crane and not by movement of the vessel, except for necessary movement which is incidental to a lifting operation while it is taking place. However, movement of merchandise while it is aboard the vessel or suspended from the crane, even between two points within a harbor, which is neither necessary nor incidental to a lifting operation by the crane would constitute coastwise transportation of merchandise within the purview of 46 U.S.C. App. 883. In the present matter it is stated that the barge will remain stationary during actual unloading operations and will not carry any merchandise while being aligned adjacent to vessel hold areas between unloading operations. In light of these newly-supplied facts, we find that the proposed operation is permissible under 46 U.S.C. App. 883.

HOLDING:

In response to the specific inquiry, we find that the use of a non-coastwise-qualified barge to accomplish cargo vessel unloading operations from a fixed position is permissible under 46 U.S.C. App. 883, so long as no merchandise is aboard the barge during such periods as it may have to be repositioned between unloading operations.

Sincerely,

B. James Fritz

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