HQ 0113141 - 46 U.S.C. App. 883; Third Proviso - United States International Trade Commision Rulings

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HQ 113141

June 29, 1994

VES-3-17-CO:R:IT:C 113141 GOB

CATEGORY: CARRIER

R. Thompson
Manager, Documentation Services
Atlantic Container Line
50 Cragwood Road
South Plainfield, New Jersey 07080

RE: 46 U.S.C. App. 883; Third Proviso

Dear Mr. Thompson:

This is in response to your letter dated June 14, 1994 with respect to 46 U.S.C. App. 883.

FACTS:

You request a ruling with respect to the applicability of 46 U.S.C. App. 883 to the following facts.

Merchandise will be transported by rail from Chicago, through Canada, to Halifax, Nova Scotia. The merchandise will then be loaded onto a foreign-flag vessel and transported to a point in New Jersey. From there, the merchandise will be loaded onto a different foreign-flag vessel for transportation to Europe or another foreign destination.

ISSUE:

Whether the above-described transportation is prohibited by 46 U.S.C. App. 883.

LAW AND ANALYSIS:

46 U.S.C. App. 883, the coastwise merchandise statute often referred to as the "Jones Act", provides in part:

No merchandise...shall be transported by water, or by land and water, on penalty of forfeiture of the merchandise (or a monetary amount up to the value thereof as determined by the Secretary of the Treasury, or the actual cost of the transportation, whichever is greater, to be recovered from any consignor, seller, owner, importer, consignee, agent, or other
person or persons so transporting or causing said merchandise to be transported), between points in the United States...either directly or via a foreign port, or for any part of the transportation, in any other vessel 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...

The third proviso to 46 U.S.C. App. 883 provides that:

[T]his section shall not apply to merchandise transported between points within the continental United States, including Alaska, over through routes heretofore or hereafter recognized by the Interstate Commerce Commission for which routes rate tariffs have been or shall hereafter be filed with said Commission when such routes are in part over Canadian rail lines and their own or other connecting water facilities.

Based upon the facts submitted, we determine that this situation falls within the scope of the third proviso and thus is not prohibited by 46 U.S.C. App. 883, provided that the through routes satisfy the requirements of the Interstate Commerce Commission ("ICC") as stated within the third proviso. Through rates are "recognized by the Interstate Commerce Commission" within the meaning of the third proviso when tariffs for them have been filed with the ICC, have not been subsequently rejected for filing, have become effective according to their terms, and have not been suspended, superseded or withdrawn by the ICC.

HOLDING:

The proposed transportation is not prohibited by 46 U.S.C. App. 883 by virtue of the third proviso to 46 U.S.C. App. 883, provided that the ICC filing requirements of the third proviso are satisfied.

Sincerely,

Arthur P. Schifflin
Chief

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