VES-3-RR:IT:EC 113858 GOB
Charles S. Donovan, Esq.
Walsh, Donovan, Lindh & Keech LLP
595 Market Square
Suite 2000
San Francisco, CA 94105-2831
RE: 46 U.S.C. App. 883; Coastwise transportation of
merchandise; Use of crane barge
Dear Mr. Donovan:
FACTS:
This is in response to your letter of February 24, 1997, in
which you state:
Our client has several questions relating to the
possible use of lightering barges to load ships at
anchor in San Francisco Bay. Our client intends to use
the lightering barges to move cargo from dockside to
anchorage and then to lift the cargo onto an export
ship via a crane barge.
1. Must the lightering barges themselves be coastwise
eligible under the Jones Act?...
2. Must the crane barge - which will be used solely
to effect the transfer from lightering barge to ship -
be coastwise eligible under the Jones Act?...
3. If the crane barge must be coastwise eligible, can
our client, who is not a coastwise citizen,
nevertheless own the crane? Note: if your response to
the preceding paragraph is that the crane barge need
not be coastwise eligible (i.e., that it can be built
and registered foreign, and owned by a non-citizen),
please disregard the questions in this paragraph.
ISSUE:
The applicability of 46 U.S.C. App. 883 to the movement of
merchandise, as described above.
LAW AND ANALYSIS:
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. A vessel built in, documented
under the laws of, and owned by citizens of the United States is
said to be "coastwise-qualified." The owner of such a vessel may
obtain a coastwise endorsement from the U.S. Coast Guard.
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.
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.
The lightering barges described above must be coastwise-qualified because they will be transporting merchandise from one
coastwise point to a second coastwise point.
You state that the crane barge will be used solely to
transfer merchandise from the lightering barge to the ships at
anchor in the San Francisco Bay. It is Customs' position 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 the lifting is taking
place. However, the movement of merchandise while the
merchandise is suspended from the crane, even between two points
within a harbor, which is effected by a movement of the vessel
which is neither necessary nor incidental to a lifting operation
by the crane would constitute coastwise transportation of
merchandise within the scope of 46 U.S.C. App. 883. An example
of necessary or incidental movement is the mere pivoting of a
vessel while it remains at one location.
It is not clear from the facts presented whether the crane
barge will be self-propelled or towed. In the case of a tow,
please note the applicability of 46 U.S.C. App. 316(a), the
coastwise towing statute, which provides in pertinent part:
It shall be unlawful for any vessel not wholly owned by
a person who is a citizen of the United States within
the meaning of the laws respecting the documentation of
vessels and not having in force a certificate of
documentation issued under section 12106 or 12107 of
Title 46 to tow any vessel other than a vessel in
distress, from any port or place in the United States,
its Territories or possessions, embraced within the
coastwise laws of the United States, to any other port
or place within the same, either directly or by way of
a foreign port or place, or to do any part of such
towing, or to tow any such vessel, from point to point
within the harbors of such places.
As your third question indicates, the answer to such
question would appear to be unnecessary based on our response to
your second question. For your information, any questions
relating to citizenship requirements for vessels registered in
the United States should be addressed to:
U.S. Coast Guard
National Vessel Documentation Center
2039 Stonewall Jackson Drive
Falling Water, West Virginia
800-799-8362.
HOLDINGS:
1. The lightering barges described above must be
coastwise-qualified because they will be transporting merchandise
from one coastwise point to a second coastwise point.
2. A non-coastwise-qualified crane barge may be used to
transfer merchandise from the lightering barge to the ships at
anchor in the San Francisco Bay 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 the lifting is
taking place.
Sincerely,
Jerry Laderberg
Acting Chief,
Entry and Carrier Rulings Branch