HQ 226989: Punaise, Dredging, 46 U.S.C. App. 292

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 226989

                          August 2, 1996




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

CATEGORY: Carriers

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
                              Chief
                              Entry and Carrier Rulings Branch