HQ 113286 - 46 U.S.C. App. 289, 883; 46 U.S.C. 2304; 19 CFR 4.50(b); Passengers; Merchandise; Bona fide rescue work - United States International Trade Commision Rulings

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HQ 113286

December 8, 1994

VES-3/3-02-CO:R:IT:C 113286 GOB

CATEGORY: CARRIER

James R. McCaul
President
IMA Associates, Inc.
600 New Hampshire Ave., N.W.
Suite 140
Washington, D.C. 20037

RE: 46 U.S.C. App. 289, 883; 46 U.S.C. 2304; 19 CFR 4.50(b); Passengers; Merchandise; Bona fide rescue work

Dear Mr. McCaul:

This is in response to your letter dated November 18, 1994 with respect to the foreign-built M/V MARPOL FIGHTER ("the vessel").

FACTS:

You state:

We are considering positioning the vessel M/V MARPOL FIGHTER in a port in the United States to be used for oil pollution clean-up, firefighting, standby rescue and fresh water production.

The vessel was built in Norway in 1971 and is currently owned by a Norwegian company. Dimensions are 250' length overall, 40' beam and 12'8" draft. The vessel is fitted with oil recovery equipment, firefighting equipment, rescue boats and helicopter landing platform, and a waste heat water maker.

We envisage signing a contract with a state or regional authority to provide standby services for emergency oil pollution clean-up, rescue and firefighting. These services will be performed within and outside the coastal limits of the United States. However, the vessel will not be utilized to transport either cargo or passengers between points in the United States. Any oil recovered within coastal waters will not be returned to the United States - but transported to a
foreign port or discharged into a tanker outside the coastal waters. No supplies will be transported between points in the United States and points within the coastal waters. Passengers rescued within the coastal limits of the United States will be transported in the vessel to a U.S. port. In other words, the vessel will not be engaging in domestic commerce.

ISSUE:

Whether the proposed activities are permitted by the coastwise laws.

LAW AND ANALYSIS:

We will discuss and rule on certain of the activities which the facts of your letter present. Because we are not aware of and cannot contemplate all of the specific activities which may be encompassed within the potential use of the vessel, this ruling is limited to the specific factual situations discussed herein.

Generally, the coastwise laws prohibit the transportation of passengers or merchandise between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States.

The coastwise laws generally apply to points in the territorial sea, which is defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and to points located in internal waters, landward of the territorial sea baseline.

46 U.S.C. App. 289 and 19 CFR 4.50(b)

The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. App. 289 and provides that:

No foreign vessel shall transport passengers between ports or places in the United States either directly or by way of a foreign port, under a penalty of $200 for each passenger so transported and landed.

Section 4.50(b), Customs Regulations (19 CFR 4.50(b)) states as follows:

A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business.

Pursuant to 46 U.S.C. App. 289, the vessel may not transport passengers from one coastwise point to a second coastwise point. As stated above, the coastwise laws apply to points in the territorial sea.

46 U.S.C. 2304(a) states as follows:

A master or individual in charge of a vessel shall render assistance to any individual found at sea in danger of being lost, so far as the master or individual in charge can do so without serious danger to the master's or individual's vessel or individuals on board.

In Ruling 111212 dated November 15, 1990, which involved the use of hovercraft to perform air crash rescue in the San Francisco Bay, we stated:

Whereas the use of hovercraft is otherwise within the ambit of the coastwise laws, the Customs Service has held that the use of a vessel for rescue work is not considered to be transportation of passengers or merchandise as defined in the regulations. Consequently, the utilization of the vessel for rescue work is not considered to be an engagement in the coastwise trade.

In Ruling 109373 dated March 28, 1988, which involved the use of an inflatable vessel to rescue windsurfers and hobie cats, we stated:

With respect to the utilization of the craft for rescue work, the use of a vessel for rescue work is not considered to be a use of the vessel in the coastwise trade. The Customs Service is of the opinion that the employment of a vessel in rescue work during an emergency does not involve the vessel in the transportation of passengers in the coastwise trade.

On the basis of Rulings 111212 and 109373, we find that the subject vessel may engage in bona fide rescue work, i.e., taking an individual in distress out of the water within coastwise waters and taking that individual to a second coastwise point such as a dock or another vessel and discharging the individual, without violating 46 U.S.C. App. 289.

46 U.S.C. App. 883

46 U.S.C. App. 883, the coastwise merchandise statute often called the "Jones Act", provides in part that no merchandise shall be transported 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, documented under the laws of, and owned by citizens of the United States.

46 U.S.C. App. 883 states, in part:

...Provided further, That for purposes of this section, the term "merchandise" includes valueless material...

Accordingly, the vessel may not lade merchandise at a coastwise point and transport it to a second coastwise point where the merchandise is unladed.

The ruling request states:

Any oil recovered within coastal waters will not be returned to the United States - but transported to a foreign port or discharged into a tanker outside the coastal waters.

This situation presents an issue that is more complicated than the mere transportation of merchandise from one coastwise point to a second coastwise point. As stated above, 46 U.S.C. App. 883 prohibits "any part of the transportation" of merchandise between coastwise points. We are not able to discuss, describe, and rule on all possible factual situations which may arise. However, we note the following. If the vessel lades oil at a coastwise point and discharges it to a tanker at a non-coastwise point, the critical fact is where the oil is transported by the tanker. If the tanker transports the oil to a coastwise point, the overall transportation from the first coastwise point to the second coastwise point is violative of 46 U.S.C. App. 883. If there is no transportation to a second coastwise point after the oil is discharged into a tanker at a non-coastwise point, there is no violation of 46 U.S.C. App. 883. Stated otherwise, the vessel may transport oil from a coastwise point to a non-coastwise point, provided that such transportation is not a part of any transportation from a coastwise point to a second coastwise point.

Finally, we call to your attention a part of 46 U.S.C. App. 883 which states:

...Provided further, That this section applies to the transportation of valueless material or any dredged material regardless of whether it has commercial value, from a point or place in the United States or a point or place on the high seas within the Exclusive Economic Zone as defined in the Presidential Proclamation of March 10, 1983, to another point or place in the United States or a point or place on the high seas within the Exclusive Economic Zone...

The Exclusive Economic Zone is defined as follows:

The Exclusive Economic Zone of the United States is a zone contiguous to the territorial sea, including zones contiguous to the territorial sea of the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands (to the extent consistent with the Covenant and the United Nations Trusteeship Agreement), and United States overseas territories and possessions. The exclusive Economic Zone extends to a distance 200 nautical miles from the baseline from which the breadth of the territorial sea is measured.

HOLDINGS:

1. Pursuant to 46 U.S.C. App. 289, the vessel, which is not coastwise-qualified, may not transport passengers from one coastwise point to a second coastwise point. However, the vessel may engage in bona fide rescue work, i.e., taking an individual in distress out of the water within coastwise waters and taking that individual to a second coastwise point such as a dock or another vessel and discharging the individual, without violating 46 U.S.C. App. 289.

2. Pursuant to 46 U.S.C. App. 883, the vessel, which is not coastwise-qualified, may not transport merchandise from one coastwise point to a second coastwise point. Further, the vessel may not be engaged in any part of transportation which is from one coastwise point to a second coastwise point.

Sincerely,

Arthur P. Schifflin
Chief

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