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HQ 116284





August 5, 2004

VES-10-02-RR:IT:EC 116284 GOB

CATEGORY: CARRIER

Anne E. Mickey, Esq.
Heather M. Spring, Esq.
Sher & Blackwell
1850 M Street, N.W.
Suite 900
Washington, DC 20036

RE: 46 U.S.C. App. § 292; Mobile Mechanical Dewatering System; Floating Lagoon Pumper; Vessel

Dear Ms. Mickey and Ms. Spring:

This ruling is with respect to your letter of August 2, 2004 on behalf of Eveready Industrial Services Corp. (“Eveready”).

FACTS:

You request confirmation that 46 U.S.C. App. §292 does not apply to a mobile mechanical dewatering system owned and operated by Eveready because the system does not constitute a vessel.

You describe the pertinent facts as follows:

The mobile mechanical dewatering system consists of a dewatering plant that is set up on shore and a floating lagoon pumper. The lagoon pumper is specifically designed to work with the Eveready dewatering plant. The pumper is 23 feet long by 10 feet wide and is mounted on two 36 inch elastomer pontoons. . . .

The lagoon pumper sweeps excess sediment off the floor of the seabed with a brush mechanism attached to a drag arm and the material is pumped through a 6 inch floating pipeline attached to the dewatering plant onshore. The pumper operates on electricity, but has no power source onboard and thus must be plugged into a power source on shore at all times to function. The pumper is not self propelled. It is operated entirely by remote control from onshore through the use of a radio computer system. Movement and depth are controlled through a combination cable/winch guidance system and a control indicator on the pumphead boom. No crew or equipment are carried onboard.

The maximum operating depth of the pumper is 17 feet, and although it is suitable for use in residential areas because it is silent, clean and maneuverable, it is not suitable for work where there is any wave action. The lagoon pumper was built in Canada and is owned and operated by Eveready which is a Canadian privately held company. It is not documented as a vessel in any jurisdiction.

You further state:

. . . Due to its need to stay connected to electrical power on shore, its inability to operate in waters with wave action, and the fact that it can only be operated by a remote control operator on shore, it has extremely limited mobility and thus could not practically be used for transportation of persons or merchandise in commerce. It is not used, and cannot be used, to transport crew or equipment. It does not have any navigational aids or lifesaving equipment on board. It does not have a bilge pump or a raked bow. It is not registered or documented as a vessel.

ISSUE:

Whether the subject mobile mechanical dewatering system is a “vessel” for the purpose of 46 U.S.C. App. §292.

LAW AND ANALYSIS:

Title 46, United States Code App., §292(a) (46 U.S.C. App. §292(a)) provides:

§ 292. 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 waters 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, 46 U.S.C. App. §292(a) prohibits the use of a non-coastwise-qualified vessel to engage in dredging in the navigable waters of the United States.

We have stated that dredging, for purposes of 46 U.S.C. App. §292, “means the use of a vessel equipped with excavating machinery in digging up or otherwise removing submarine material.” See, for example, Ruling 111188 dated September 14, 1990.

Accordingly, in order for there to be an engagement in dredging, a vessel must be employed.

“Vessel” is defined in title 19, United States Code, §1401(a), which provides:

The word “vessel” includes every description of water craft or other contrivance used, or capable of being used, as a means of transportation in water, but does not include aircraft.

Title 1, United States Code, §3 provides:

The word “vessel” includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.

Title 46, United States Code, §2101 provides in pertinent part as follows:

(45) “vessel” has the same meaning given that term in section 3 of title 1.

Customs and Border Protection (“CBP”) has considered the issue of whether an article is a vessel on many occasions. Illustrative of CBP’s analysis is HQ 115580 dated March 20, 2002, where we stated:

In our prior ruling we discussed the judicial analysis courts have adopted concerning the above definition with respect to a particular craft. We stated that the courts have determined that “[a]s a general principle, where the vessel status of an unconventional craft is unsettled, it is necessary to focus upon the ‘purpose for which the craft is constructed and the business in which it is engaged.’” Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 293 (5th Cir. 1990), citing Blanchard v. Engine & Gas Compressor Servs., Inc., 575 F.2d 1140, 1142 (5th Cir. 1978), and The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12, 48, 48 L.Ed. 73 (1903) In order to be deemed a “vessel” for general maritime jurisdiction, a craft must be “designed for navigation and commerce and retain such status even while moored, dry-docked, or otherwise immobilized and secured to land.” Cook v. Belden Concrete Products, Inc., 472 F.2d 999, 1001

(5th Cir. 1973), citing Cope v. Vallette Dry Dock, 119 U.S. 625, 7 S.Ct. 336, 30 L.Ed. 501 (1887). In determining vessel status, the court in Gremillion stated: “The caselaw is heavily skewed in favor of conferring such status upon craft whose primary mission is the transportation of cargo, equipment, or passengers over navigable waters.” Gremillion at p. 293. The court further provided that, “The greater the structure’s resemblance to conventional seafaring craft, the greater the odds of securing vessel status.” Id. However, as noted in Estate of Wenzel v. Seward Marine Services, Inc., 709 F.2d 1326, 1328 (9th Cir. 1983), the fact that a particular craft “was constructed for a purpose other than the transportation of persons or things from one place to another does not mean that as a matter of law, it is not a vessel in navigation.”

As to whether a particular craft resembles a traditional vessel as discussed above, the courts have looked to whether it maintains or possesses the following attributes of traditional vessels: (1) navigational aids; (2) lifeboats and other life-saving equipment; (3) a raked bow; (4) bilge pumps; (5) crew quarters; and (6) registration with the Coast Guard as a vessel. Gremillion, at 293, citing Bernard v. Binnings Construction Co., Inc., 741 F.2d 824, 832, n.25 (5th Cir. 1984). The degree to which a particular craft possess these features is indicative as to its legally-recognized status as a vessel. Id.

Examining the definitions of “vessel” cited above and the factors and criteria of the case law cited above, we find that the subject mobile mechanical dewatering system is not a vessel for the purpose of 46 U.S.C. App. § 292 and related laws. The facts indicate that the dewatering system is not used, nor is it reasonably capable of being used, as a means of transportation on water. It is not self-propelled, must remain connected to electrical power on shore, and can only be operated by remote control operator on shore. It contains none of the usual indicia of vessels and is not registered as a vessel with the U.S. Coast Guard.

Our determination is equally applicable to the floating lagoon pumper, which is a part of the mobile mechanical dewatering system.

HOLDING:

Neither the subject mobile mechanical dewatering system, nor the floating lagoon pumper, which is a part of the dewatering system, is a vessel for the purpose of 46 U.S.C. App. §292 and related laws. Therefore, activity by these articles is not prohibited by 46 U.S.C. App. §292.

Sincerely,

Glen E. Vereb
Chief

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