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HQ 226989

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August 2, 1996

VES-10-02-RR:IT:EC 226989 CC

CATEGORY: CARRIER

Jeffrey F. Lawrence, Esq.
Cindy G. Buys, Esq.
Sher & Blackwell
Suite 612
2000 L Street, N.W.
Washington, D.C. 20036

RE: Punaise, Dredging, 46 U.S.C. App. ? 292

Dear Mr. Lawrence and Ms. Buys:

This is in response to your letter, on behalf of PinPoint Dredging, requesting a ruling pursuant to 46 U.S.C. App. ? 292.

FACTS:

According to your submissions, the Punaise is an unmanned machine that pumps soil from the sea/river bottom. When, utilized, the Punaise is under water with its suction pipe embedded in the sea/river bottom. It rests on the bottom where it suctions up the soil and conveys the soil to shore via a pipeline. Also connected to the pipeline is a cable by which a shore operator sends electronic instructions to the Punaise. The Punaise, therefore, is remotely controlled from land by shore-based computers. The Punaise is not capable of self-propulsion; it only floats on water, through the inflation of a flotation collar, when it is towed to the work site prior to beginning work. In addition, you state that the Punaise is not registered as a vessel under any national vessel registry, U.S. or foreign.

It is presently proposed that the Punaise be used to pump sand from the sea bottom in U.S. territorial waters near Long Island, N.Y., as part of a test demonstration for use of the device for beach replenishment, sand bypassing projects, or both. If that demonstration were successful, the device would be used for other replenishment or bypassing projects in other U.S. waters.

ISSUE:

Whether use of the Punaise to dredge in navigable waters of the United States is prohibited by 46 U.S.C. App. ? 292?

LAW AND ANALYSIS:

46 U.S.C. App. ? 292 provides the following:

Vessels that may engage in dredging

(a) In general

Except as provided in subsection (b) of this section, a vessel may engage in dredging in the navigable water of the United States only if--

(1) the vessel meets the requirements of section 883 of this title and sections 802 and 803 of this title for engaging in the coastwise trade;

(2) when chartered, the charterer of the vessel is a citizen of the United States under sections 802 and 803 of this title for engaging in the coastwise trade; and

(3) for a vessel that is at least 5 net tons, the vessel is documented under chapter 121 of Title 46 with a coastwise endorsement.

Thus, for use of the Punaise to be prohibited by 46 U.S.C. App. ? 292, it must be engaged in dredging and it must be a vessel. We have used the following definition of dredging (see HQ 111188 of September 14, 1990, and 111275 of November 13, 1990) in application of 46 U.S.C. App. ? 292:

Dredging is defined as "excavation" be any means.... The word "excavate" is derived from the latin word meaning to hollow out. Its common, plain and ordinary meaning is to make a cavity or hole in, to dig out, hollow out, to remove soil by digging, scooping out or other means. The common plain and ordinary meaning of the word "dredging" is the removal of soil from the bottom waters by suction or scooping or other means. Gar-Con Development v. State, 468 So. 2d 413 (Fla. Dist. Ct. App. 1985).

The inquirer has not presented any arguments to support the contention that the Punaise is not involved in dredging. The literature concerning the Punaise that has been submitted states several times that the Punaise performs dredging. Finally, the activity engaged in by the Punaise, removing soil from the bottom waters, meets the definition of dredging. Consequently, we find that the Punaise engages in dredging for purposes of 46 U.S.C. App. ? 292.

The sole question before us, therefore, is whether the Punaise is a vessel. By stating "a vessel may engage in dredging," the language of 46 U.S.C. App. ? 292, as amended by Pub.L. 102-587, ? 5501(a)(1) (1992), makes it clear that the statute applies to vessels. This amended law substituted provisions relating to vessels that may engage in dredging, for provisions relating to dredging by foreign built dredges. Even prior to its amendment, 46 U.S.C. App. ? 292, prohibited vessels from dredging, since we found in several administrative decisions, that the statute applied to dredges that were vessels. See, e.g., HQ 111188, and HQ 109056 of August 19, 1987. See also, an Opinion of the Attorney General, 42 Op. Atty. Gen. 189, August 7, 1963.

There is no formula by which to determine whether a structure is a vessel. Kathriner v. Unisea, Inc., 975 F.2d 657, 662 (9th Cir. 1992). Although 46 U.S.C. App. ? 292 does not include a definition of vessel, that term has been defined by other statutes. Vessel is defined as including, "... every description of water craft or other contrivance used, or capable of being used, as a means of transportation in water..." 19 U.S.C. 1401(a), 1 U.S.C. 3, and 46 U.S.C. 2101(45). Courts have commonly used this definition when a particular statute does not contain a specific definition of the term vessel. See, e.g., McCarthy v. The Bark Peking, 716 F.2d 130 (2d Cir. 1983). Customs used the above statutory definition of vessel in applying 46 U.S.C. App. ? 292, prior to its amendment, in several administrative decisions. See, e.g., HQ 111188, and HQ 109056.

Although the courts have not specifically addressed the definition of vessel in application of 46 U.S.C. App. ? 292, there is a considerable number of court cases in which the above statutory definition of vessel is discussed and analyzed in other contexts, e.g., for questions of dutiability, applicability of vessel entry and clearance requirements, Coast Guard administered safety and inspection requirements, and seamen's compensation for personal injury or death. As stated in United States v. Bethlehem Steel Co., 53 CCPA 142, 148, C.A.D. 891 (1966), quoting Hitner Sons Co. v. United States, 13 Ct. Cust. Appls. 216, T.D. 41175 (1925):

The courts of our country have had frequent occasion to discuss and decide what were and were not to be considered "vessels" under this [statutory] definition. While these decisions are not uniform and are sometimes conflicting, a fairly definite construction can be gathered from them all.

The key language in the statutory definition of vessel according to the courts is "capable of being used as a means of transportation in water." As stated in Kathriner v. Unisea, Inc., supra, at 662, "The key characteristic of vessels under this definition is that they are capable of transportation over water." Pursuant to the axiom that "vessels" must be at least capable of use as a means of transportation on water, courts uncertain of a particular craft's place in nautical taxonomy have drawn distinctions based on the presence or absence of this residual capacity. McCarthy v. The Bark Peking, supra, at 134.

As noted by the courts, the language of the statutory definition of the term vessel is fairly broad. See, e.g., United States v. Seagull Marine, 67 CCPA 89, C.A.D. 1251, 627 F.2d 1083 (1980). Despite this broad definition, the courts have not interpreted it to mean that anything that can float on water is a vessel.

The court in Thayer v. United States, 2 Ct. Cust. App. 526, 529, T.D. 32252 (1912), in applying the statutory definition of vessel of 1 U.S.C. 3 to racing shells, stated the following:

*** we think it is obvious that Congress could not have meant by section 3 [1 U.S.C. 3] that every artificial thing that floats on water and of sufficient buoyancy to be used as a means of transporting anything, however small, is a vessel in the eyes of the law, but must have meant that to be a vessel it must be capable of some substantial use as a means of transportation on water. A temporary, fugitive, impractical, although possible, use for transportation of articles or things of trifling weight in smooth water only and for short distances we do not think could possibly answer the call of the statute.

The Court in Hitner Sons Co. v. United States, 13 Ct. Cust. App. 216, 221, T.D. 41175 (1922), in applying the statutory definition of vessel of 1 U.S.C. 3 to the hull of a vessel towed into the United States for scrap or junk, stated the following:

[f]rom these authorities [previous court cases considering what are vessels] some general conclusions may be deduced. In order to come within the definition of a "vessel" as fixed by section 3, Revised Statutes, the service upon which the thing in question can engage must be a maritime service. It must have some relation to commerce or navigation, or at least some connection with a vessel employed in trade. It must be engaged in, or in some sense related to commerce and navigation. The fact that the structure has the shape of a vessel, or has been once used as one, or could by proper appliances be again used as such, can not affect the question. The test is the actual status of the structure as being fairly engaged in or suitable for, commerce or navigation and as a means of transportation on water.

In Tregoning Boat Co. v. United States, 15 Cust. Ct. 197, 199, C.D. 971 (1945), the court stated that the following:

[u]nder the definition of "vessel" contained in 1 U.S.C. ? 3, as construed by the courts, present and continuous use as a means of transportation on water is not required; capability of practical and substantial use is sufficient.

The courts in determining whether something is a vessel have also focused on whether it transports a crew, cargo, etc. In Thayer v. United States, supra, the court found racing shells not to be vessels because they were not capable of being used for transportation of "persons or property from place to place to any substantial extent or for practical purposes." In Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293 (5th Cir. 1990) the court stated, "The caselaw is heavily skewed in favor of conferring such status [vessel] upon craft whose primary mission is the transportation of cargo, equipment, or passengers over navigable waters."

Finally, the purpose for which a craft is constructed is an important consideration in determining whether a particular structure is a vessel. See, e.g., HQ 112807 of July 23, 1993. Regarding this factor, the court in Kathriner v. Unisea, Inc., supra, at 663, quoting The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12, 48 L.Ed. 73 (1903), stated the following:

Neither size, form, equipment, nor means of propulsion are determinative factors upon the question of jurisdiction, which regards only the purpose for which the craft was constructed, and the business in which it is engaged.

The inquirer argues that based on the statutory definition of vessel and its application by the courts and Customs Service, the Punaise is not a vessel, and, consequently, is not prohibited from engaging in dredging operations in U.S. territorial waters by 46 U.S.C. App. ? 292.

Based on the information submitted by the inquirer, the Punaise does not transport merchandise or a crew. Although it may be capable of transporting merchandise in an impractical or fugitive manner, the Punaise was not designed for transportation on water. The Punaise has limited mobility. It has no means of self-propulsion and only floats on water, through the inflation of a floatation collar, when towed to a work site. Its purpose or design is to engage in dredging operations while resting on the seabed. It is not engaged in or usable for commerce or navigation as a means of transportation on water. Instead, it is an unmanned structure controlled by land-based computer systems, which better fits the description of a piece of equipment rather than a vessel. In addition, the Punaise is not documented as a vessel. Consequently, based on the statutory definition of vessel and the relevant court and administrative precedent, we find that the Punaise is not a vessel.

We note that there are number of cases in which the courts have found dredges to be a vessel within the meaning of 1 U.S.C. 3. See, e.g., The Alabama, 22 F.449 (S.D. Ala. 1884), The International, 89 F. 484 (3rd Cir. 1898), In re Eastern Dredging Co., 138 F. 942 (D. Mass. 1905), Ellis v. United States, 206 U.S. 246, 27 S. Ct. 600, 51 L. Ed. 1047 (1907), City of Los Angeles v. United Dredging Co., 14 F.2d 364 (9th Cir. 1926), Kibadeaux v. Standard Dredging Co., 81 F.2d 670 (5th Cir. 1936), Brinegar v. San Ore Construction Company, Inc., 302 F. Supp. 630 (E.D. Ark. 1969). Whether or not these dredges were capable of self-propulsion was not the determinative factor in finding whether they were vessels in these cases. Instead, the most important factor was whether the dredge transported a crew and machinery or merchandise. For example, in The International, supra, at 841, the court stated the following:

Dredges and scows are "water craft" and valueless except as such; and are "used or capable of being used as means of transportation." ...Dredges transport their crews, coal and other supplies, and are "capable" of being used to transport other things.

In Ellis v. United States, supra, the court stated, "...the scows were used for transporting mud, and that the dredge was used for transporting her crew and the dredging equipment necessary to dig up the mud and put it into the scows, and therefore are both vessels as known to the law."

Consequently, the dredges of the above cases are distinguishable from the Punaise. Whereas the dredges of the above cases transported crew and equipment, which they were designed to do, the Punaise, according to the inquirer does not transport a crew or merchandise, is not capable of such a transportation function in any significant manner, and was not designed for such. In addition, in Kibadeaux v. Standard Dredging Co., supra, the court found the dredge to be a vessel within the scope of 1 U.S.C. 3 because in addition to carrying machinery and a complement of men, thus transporting them, the dredge was enrolled and licensed as a vessel and navigated from port to port around three sides of the United States. The Punaise is not licensed as a vessel and is of limited mobility. Consequently, the dredges of the above cases, found to be vessels, are distinguished from the Punaise.

HOLDING:

The Punaise is not a vessel and is not prohibited from dredging in navigable waters of the U.S. by 46 U.S.C. App. ? 292.

Sincerely,

William G. Rosoff

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