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

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

 


                              HQ 113286

                              December 8, 1994

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

CATEGORY:  Carriers

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
     

                              - 2 -

     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.

                              - 3 -

     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...

                              - 4 -

     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.


                              - 5 -

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
                              Carrier Rulings Branch