VES-3 RR:IT:EC 115844 RSD
Ms. Dale R. Reed
Alaskan Marine Documentation
P.O. Box 878869
Wasilla, Alaska 99687
RE: A Foreign Built Stationary Barge Used as a Lodge; Coastwise Trade; Jones Act; 46
U.S.C. App. 883, 289
Dear Ms. Reed:
This is in response to your letter dated October 24, 2002, submitted to our office via facsimile regarding a Canadian-built barge that will be used a floating lodge.
FACTS:
The vessel is a Canadian built-barge that will be used as a floating lodge. It will be moored for permanence and will include a permanent walkway connecting the vessel to Federal property on one side and state tidal land on the other side. The vessel is moored by 5- ton anchors on each end and by 2 1/2-ton anchors to prevent sideways movement. It is also connected to pilings on shore. According to your letter, the movements of the vessel are minimal, tidal up and down and bow to stern will be approximately three feet. The vessel will not leave its permanent mooring and is fully self-contained.
Because of the permanence of the vessel, it was required to obtain an occupancy permit from the local fire marshal and is not regulated by the United States Coast Guard. The operator has gone through permitting from the United States Forest Service, State of Alaska tidal Leases and the Corp of Engineers. The barge is currently documented under a registry endorsement.
ISSUE:
Whether the coastwise laws are violated when a non-Coastwise qualified barge is used as a stationary lodge in U.S. territorial waters.
LAW AND ANALYSIS:
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. In addition, Section 289 of title 46 (46 U.S.C. App. § 289), prohibits the transportation of passengers between points in the United States embraced within the coastwise laws, either directly or by way of a foreign port, in a non-coastwise-qualified vessel (see above). We note that for purposes of § 289, "passenger" is defined as " ... any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership or business" (19 CFR § 4.50(b)).
The Customs Service has held that the use of a non-coastwise-qualified vessel as a moored facility does not violate the coastwise laws, or any other law administered by the Customs Service, provided that the vessel remains stationary excepting tidal movements. If the vessel is not secured or otherwise moves while in use, then such operations would be a violation of the coastwise laws. Customs has held, however, there is no coastwise violation if the vessel is being loaded or unloaded and must be moved to another location because of stress of weather or other reason involving the vessel's safety, and is subsequently returned to the same point to continue its loading or unloading, and neither loads not unloads merchandise at any other point in the United States. See, e.g., C.S.D. 89-107, and Headquarters Ruling Letter 112695, dated August 31, 1993.
In this instance, based on your description, we are satisfied that the barge will remain stationary when it is moored and used as a lodge. Therefore, we find that there will not be a violation of the coastwise laws
HOLDING:
A non-coastwise qualified barge may be used as a moored stationary lodge within the territorial waters of the United States without violating the coastwise laws.
Sincerely,
Glen E. Vereb
Acting Chief
Entry Procedures and Carriers Branch