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HQ 113858





April 4, 1997

VES-3-RR:IT:EC 113858 GOB

CATEGORY: CARRIER

Charles S. Donovan, Esq.
Walsh, Donovan, Lindh & Keech LLP
595 Market Square
Suite 2000
San Francisco, CA 94105-2831

RE: 46 U.S.C. App. 883; Coastwise transportation of merchandise; Use of crane barge

Dear Mr. Donovan:

FACTS:

This is in response to your letter of February 24, 1997, in which you state:

Our client has several questions relating to the possible use of lightering barges to load ships at anchor in San Francisco Bay. Our client intends to use the lightering barges to move cargo from dockside to anchorage and then to lift the cargo onto an export ship via a crane barge.

1. Must the lightering barges themselves be coastwise eligible under the Jones Act?...

2. Must the crane barge - which will be used solely to effect the transfer from lightering barge to ship - be coastwise eligible under the Jones Act?...

3. If the crane barge must be coastwise eligible, can our client, who is not a coastwise citizen, nevertheless own the crane? Note: if your response to the preceding paragraph is that the crane barge need not be coastwise eligible (i.e., that it can be built and registered foreign, and owned by a non-citizen), please disregard the questions in this paragraph. ISSUE:

The applicability of 46 U.S.C. App. 883 to the movement of merchandise, as described above.

LAW AND ANALYSIS:

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. A vessel built in, documented under the laws of, and owned by citizens of the United States is said to be "coastwise-qualified." The owner of such a vessel may obtain a coastwise endorsement from the U.S. Coast Guard.

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.

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.

The lightering barges described above must be coastwise-qualified because they will be transporting merchandise from one coastwise point to a second coastwise point.

You state that the crane barge will be used solely to transfer merchandise from the lightering barge to the ships at anchor in the San Francisco Bay. It is Customs' position 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 the lifting is taking place. However, the movement of merchandise while the merchandise is suspended from the crane, even between two points within a harbor, which is effected by a movement of the vessel which is neither necessary nor incidental to a lifting operation by the crane would constitute coastwise transportation of merchandise within the scope of 46 U.S.C. App. 883. An example of necessary or incidental movement is the mere pivoting of a vessel while it remains at one location.

It is not clear from the facts presented whether the crane barge will be self-propelled or towed. In the case of a tow, please note the applicability of 46 U.S.C. App. 316(a), the coastwise towing statute, which provides in pertinent part:

It shall be unlawful for any vessel not wholly owned by a person who is a citizen of the United States within the meaning of the laws respecting the documentation of vessels and not having in force a certificate of documentation issued under section 12106 or 12107 of Title 46 to tow any vessel other than a vessel in distress, from any port or place in the United States, its Territories or possessions, embraced within the coastwise laws of the United States, to any other port or place within the same, either directly or by way of a foreign port or place, or to do any part of such towing, or to tow any such vessel, from point to point within the harbors of such places.

As your third question indicates, the answer to such question would appear to be unnecessary based on our response to your second question. For your information, any questions relating to citizenship requirements for vessels registered in the United States should be addressed to:

U.S. Coast Guard
National Vessel Documentation Center
2039 Stonewall Jackson Drive
Falling Water, West Virginia
800-799-8362.

HOLDINGS:

1. The lightering barges described above must be coastwise-qualified because they will be transporting merchandise from one coastwise point to a second coastwise point.

2. A non-coastwise-qualified crane barge may be used to transfer merchandise from the lightering barge to the ships at anchor in the San Francisco Bay 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 the lifting is taking place.

Sincerely,

Jerry Laderberg
Acting Chief,

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