VES-3-06-CO:R:P:C 111347 GEV
CATEGORY: Carriers
Art M. Morgan, Jr.
Director, Inspection & Control
U.S. Customs Service
909 First Ave.
Seattle, Washington 98174
RE: Coastwise Trade; Foreign-built Vessel; Wake Survey;
46 U.S.C. App. 289
Dear Mr. Morgan:
This is in response to your memorandum dated October 11,
1990 (your ref: VES-3:SE:IC AMM) transmitting a letter dated
September 27, 1990, from Mr. Darrell E. Bryan, Vice President &
General Manager, Clipper Navigation, Inc., Seattle, Washington,
and a letter dated September 21, 1990, from Mr. Stanley C.
Stumbo, Chief Naval Architect, Washington State Ferries, Seattle,
Washington, regarding the use of a foreign-built vessel for a
Puget Sound wake survey. Our ruling on this matter is set forth
below.
FACTS:
Washington State Ferries, an agency within the State of
Washington’s Department of Transportation, wishes to charter the
VICTORIA CLIPPER, a foreign-built passenger ferry, in order to
determine the wake characteristics of the vessel on a passage at
high tide through Rich Passage. In order to obtain accurate
data, it is proposed that in addition to the vessel’s crew and a
full load of fuel, seventy-three (73) non-paying employees of the
State of Washington would be required to simulate full load
conditions. No one would disembark the vessel until its return
to Seattle, the point of embarkation.
ISSUE:
Whether the transportation in the Puget Sound on a foreign-
built passenger vessel of non-paying employees of the State of
Washington in order to simulate full load conditions for purposes
of a wake survey is prohibited by 46 U.S.C. App. 289.
– 2 –
LAW AND ANALYSIS:
Title 46, United States Code Appendix, section 883 (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 and documented under the laws of the United States and
owned by persons who are citizens of the United States (i.e., a
coastwise-qualified vessel). This statute has been found to
apply even to the transportation of merchandise from point to
point within a harbor. Pursuant to 19 U.S.C. 1401(c), the word
“merchandise” means goods, wares and chattels of every
description and includes merchandise the importation of which is
prohibited. Furthermore, Public Law 100-329 (102 Stat. 588)
amended section 883 to apply to the transportation of “valueless
material…”
Title 46, United States Code Appendix, section 289 (46
U.S.C. App. 289, the passenger coastwise statute), prohibits the
transportation of passengers between points embraced within the
coastwise laws of the United States, either directly or by way of
a foreign port, in a non-coastwise-qualified vessel. Pursuant to
section 4.50(b), Customs Regulations (19 CFR 4.50(b)) a
“passenger” for purposes of section 289 is defined as “any person
carried on a vessel who is not connected with the operation of
such vessel, her navigation, ownership or business.”
Points embraced within the coastwise laws include all points
within the territorial waters of the United States, including
points within a harbor, as well as artificial islands,
installations, and devices permanently or temporarily attached to
the seabed of the outer continental shelf for the purpose of
exploring for, developing or producing resources therefrom. The
territorial waters of the United States consist of the
territorial sea, defined as the belt, 3 nautical miles wide,
adjacent to the coast of the United States and seaward of the
territorial sea baseline.
Customs has previously held that the use of a vessel in
oceanographic research and survey is not coastwise trade even if
the vessel transports vessel crew, scientists, instructors, or
students between coastwise points. In addition, we have held
that the use of a vessel for the purpose of demonstration in
which persons who are transported on demonstration rides embark
and disembark at the same point is not coastwise trade even if
the ride is entirely within U.S. territorial waters. The
rationale behind both of these rulings is that such persons are
not considered to be “passengers” within the meaning of 19 CFR
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4.50(b) for purposes of 46 U.S.C. App. 289. We believe this same
rationale applies to the transportation of employees of the State
of Washington on the VICTORIA CLIPPER for purposes of a wake
survey in the Puget Sound.
For future reference, you should know that had we considered
the Washington State employees to be passengers for purposes of
section 289, their transportation on the subject vessel to the
high seas (i.e., beyond U.S. territorial waters) and back to the
point of embarkation, assuming they would not go ashore, even
temporarily, at another United States point, often called a
“voyage to nowhere”, is not considered coastwise trade (29 O.A.G.
318 (1912)).
HOLDING:
The transportation in the Puget Sound on a foreign-built
passenger vessel of non-paying employees of the State of
Washington in order to simulate full load conditions for purposes
of a wake survey is not prohibited by 46 U.S.C. App. 289.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch