HQ 113141: 46 U.S.C. App. 883; Third Proviso

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 113141

                            June 29, 1994

VES-3-17-CO:R:IT:C  113141 GOB

CATEGORY:  Carriers

R. Thompson
Manager, Documentation Services
Atlantic Container Line
50 Cragwood Road
South Plainfield, New Jersey 07080

RE:  46 U.S.C. App. 883; Third Proviso

Dear Mr. Thompson:

     This is in response to your letter dated June 14, 1994 with
respect to 46 U.S.C. App. 883.

FACTS:

     You request a ruling with respect to the applicability of 46
U.S.C. App. 883 to the following facts.

     Merchandise will be transported by rail from Chicago, through
Canada, to Halifax, Nova Scotia.  The merchandise will then be
loaded onto a foreign-flag vessel and transported to a point in New
Jersey.  From there, the merchandise will be loaded onto a
different foreign-flag vessel for transportation to Europe or
another foreign destination.

ISSUE:

     Whether the above-described transportation is prohibited by
46 U.S.C. App. 883.

LAW AND ANALYSIS:

     46 U.S.C. App. 883, the coastwise merchandise statute often
referred to as the "Jones Act", provides in part:

     No merchandise...shall be transported by water, or by land and
     water, on penalty of forfeiture of the merchandise (or a
     monetary amount up to the value thereof as determined by the
     Secretary of the Treasury, or the actual cost of the
     transportation, whichever is greater, to be recovered from any
     consignor, seller, owner, importer, consignee, agent, or other
                              
                              - 2 -          

     person or persons so transporting or causing said merchandise
     to be transported), between points in the United            
     States...either directly or via a foreign port, or for any  
     part of the transportation, in any other vessel 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...  

     The third proviso to 46 U.S.C. App. 883 provides that:

     [T]his section shall not apply to merchandise transported
     between points within the continental United States, including
     Alaska, over through routes heretofore or hereafter recognized
     by the Interstate Commerce Commission for which routes rate
     tariffs have been or shall hereafter be filed with said
     Commission when such routes are in part over Canadian rail
     lines and their own or other connecting water facilities.

     Based upon the facts submitted, we determine that this
situation falls within the scope of the third proviso and thus is
not prohibited by 46 U.S.C. App. 883, provided that the through
routes satisfy the requirements of the Interstate Commerce
Commission ("ICC") as stated within the third proviso.  Through
rates are "recognized by the Interstate Commerce Commission" within
the meaning of the third proviso when tariffs for them have been
filed with the ICC, have not been subsequently rejected for filing,
have become effective according to their terms, and have not been
suspended, superseded or withdrawn by the ICC.

HOLDING:

     The proposed transportation is not prohibited by 46 U.S.C.
App. 883 by virtue of the third proviso to 46 U.S.C. App. 883,
provided that the ICC filing requirements of the third proviso are
satisfied.



                              Sincerely,



                              Arthur P. Schifflin
                              Chief
                              Carrier Rulings Branch