HQ 110823: The use of a non-coastwise-qualified barge as a platform for equipment used to unlade cargo from vessels

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 110823
                        February 1,1990

VES-3-CO:R:P:C 110823 LLB

CATEGORY:  Carriers

Mr. Guy A. Morley
Reid and Priest
40 West 57th Street
New York, New York  10019-4097

RE:  The use of a non-coastwise-qualified barge as a platform for
     equipment used to unlade cargo from vessels


Dear Mr. Morley:

     Reference is made to your letter of February 1, 1990, which
supplements the facts supplied to us in your letter of January
29, 1990, concerning the above captioned matter.  You ask that we
reconsider our position contained in our letter to you dated
February 1, 1990.

FACTS:

     It is proposed that a non-self-propelled barge which may not
be documented for the coastwise trade would be purchased in
Portsmouth, Virginia, and towed to the port of Newark, New
Jersey.  Once in Newark, the vessel would be moored at wharfside
and supplied with an apparatus known as a Siwertell ship
unloader.  The sole occupation of the barge would be in the
unloading of cargo vessels at wharfside.  To accomplish its task,
the vessel would be moved along the length of cargo vessels being
unloaded.  Movement would be along the corridor created between
the vessel and the wharf.  The second letter to us on this
subject makes it clear that during the periods when the barge
may be moved along the length of the vessel being unloaded, it
would not have aboard any merchandise whatsoever.  Any
merchandise previously unloaded would already have been
transferred directly to wharfside by the barge which would remain
in a fixed position during actual unloading operations.

ISSUE:

     Whether the use of a non-coastwise-qualified vessel, as
outlined above, would constitute a use proscribed by the
coastwise trade merchandise statute.
LAW AND ANALYSIS:

     Title 46, United States Code App., section 883 (46 U.S.C.
App. 883) in pertinent part, prohibits the transportation of
merchandise 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 and documented under the laws of the United
States and owned by persons who are citizens of the United
States.

     Customs has held 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 it is
taking place.  However, movement of merchandise while it is
aboard the vessel or suspended from the crane, even between two
points within a harbor, which is neither necessary nor incidental
to a lifting operation by the crane would constitute coastwise
transportation of merchandise within the purview of 46 U.S.C.
App. 883.  In the present matter it is stated that the barge
will remain stationary during actual unloading operations and
will not carry any merchandise while being aligned adjacent to
vessel hold areas between unloading operations.  In light of
these newly-supplied facts, we find that the proposed operation
is permissible under 46 U.S.C. App. 883.

HOLDING:

     In response to the specific inquiry, we find that the use of
a non-coastwise-qualified barge to accomplish cargo vessel
unloading operations from a fixed position is permissible under
46 U.S.C. App. 883, so long as no merchandise is aboard the barge
during such periods as it may have to be repositioned between
unloading operations.



                                Sincerely,




                                B. James Fritz
                                Chief
                                Carrier Rulings Branch