HQ 113481

VES-3-R:IT:C 113481 GEV

CATEGORY: Carriers

Mitchell G. Seil

Operations Manager

American Workboats

Pier 14, First Floor

Honolulu, Hawaii 96817

RE: Coastwise Trade; Merchandise; Passengers; Logistics Support; GLORITA;

       46 U.S.C. App.  289, 883

Dear Mr. Seil:

     This is in response to your letter of June 14, 1995, requesting a ruling regarding the use of

a vessel to provide logistics support to National Marine Fisheries Service (NMFS) field research

camps in the Northwestern Hawaiian Islands.  Enclosed with your letter was a copy of the

vessel’s documentation from the States of Oregon and California, a copy of the letter award sent

to you describing the scope of the work as per the contract, and a copy of the narrative report

regarding the subject vessel.

FACTS:

     On March 22, 1995, the U.S. Department of Commerce, National Oceanic and

Atmospheric Association (NOAA), Western Administration Support Center (WASC)

Procurement Division-WC32, awarded contract no. 50ABNA500036 to Geo 3 Incorporated of

2090 Navato Boulevard, Navato, California, owners of the GLORITA.  The subject vessel, which

was built foreign, is not documented under the laws of the United States by the U.S. Coast Guard

having been removed from such documentation as of June 5, 1990.

     The aforementioned contract requires that the vessel provide logistics support in the

Northwestern Hawaiian Islands.  Specifically, the vessel was to load, store, transport and unload

government equipment, supplies, and scientific personnel.  The transportation in question was to

take place between Honolulu and remote NMFS field research camps located at Laysan Island,                               – 2 –

Lisianski Island, Pearl and Hermes Reef, French Frigate Shoals, and Kure Atoll.  The

transportation was to take place on two cruises during March and May of 1995.  Included among

those items transported were seven caged seal pups to be released in the wild.

ISSUE:

     Whether the use of the GLORITA to conduct logistics operations for the NMFS between

points within the State of Hawaii pursuant to the terms of the NOAA contract described above

was violative of 46 U.S.C. App.  289 and 883.              

LAW AND ANALYSIS:

     The Act of June 19, 1886, as amended (24 Stat. 81; 46 U.S.C. App.  289, sometimes

called the coastwise passenger law), provides that:

          No foreign vessel shall transport passengers between ports or

          places in the United States either directly or by way of a foreign

          port, under a penalty of $200 for each passenger so transported

          and landed.

     Customs has consistently interpreted the above prohibition to apply to all vessels except

United States-built, owned, and properly documented vessels (see 46 U.S.C.  12106, 12110; 46

U.S.C. App.  883; 19 CFR  4.80).   Furthermore, for purposes of the above statute a

“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.”  (See 19 CFR  4.50(b))

     The coastwise law pertaining to the transportation of merchandise,  27 of the Act of 

June 5, 1920, as amended (41 Stat. 999; 46 U.S.C. App.  883, often called the “Jones Act”),

provides, in pertinent part, that:

          No merchandise, including merchandise owned by the United States 

          Government, …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 person or persons so transporting or causing

          said merchandise to 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 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…

          (Emphasis added)

                              – 3 –

     The coastwise laws generally apply to points in the territorial sea, 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, in cases where the baseline and the coastline differ.  The

term “merchandise” as used in  883, includes any article, including valueless materials (see

amendment to  883 by the Act of June 7, 1988, Pub.L. 100-329; 102 Stat. 588).

     In its interpretation of the coastwise laws, Customs has long held that the use of a vessel

solely to engage in oceanographic research is not considered a use in the coastwise trade (see

ruling letters 109344, dated July 6, 1988, and 110399, dated August 23, 1989).  We have held

that the use of non-coastwise-qualified vessels to engage in oceanographic research, including the

transportation of persons participating in such research to, from, and between research sites in

United States territorial waters, whether or not the persons participating in the research

temporarily leave the vessels at the research sites, would not violate the coastwise laws.  

Furthermore, we have held that the collection of marine specimens at the research sites and the

transportation of those specimens from the research sites to points in the United States would not

violate the coastwise laws.  Of course, if such a vessel transported between coastwise points, or

provided any part of such transportation, of any persons other than the vessel crew, persons

engaging in oceanographic research and students receiving instruction in such research, or any

merchandise other than the usual supplies and equipment necessary for the research and/or

research specimens or samples, the coastwise laws would be violated.

     This interpretation of the coastwise laws is buttressed by the Act of July 30, 1965 (Pub.L.

89-99; 79 Stat. 424; 46 U.S.C. App.  441-444, often called the Oceanographic Research Vessel

Act), as amended,  3 (46 U.S.C. App.  443) of which provides that, “An oceanographic

research vessel shall not be deemed to be engaged in trade or commerce.”  This Act, in defining

the term “oceanographic research vessel,” defines oceanographic research as “…including, but not

limited to, such studies pertaining to the sea as seismic, gravity meter and magnetic exploration

and other marine geophysical or geological surveys, atmospheric research, and biological

research.” (46 U.S.C. App.  441(1))

     In regard to the GLORITA, upon reviewing the terms of the contract it is apparent that

the vessel was not obtained for the purpose of engaging in any form of oceanographic research. 

No reference to any such activity is made therein.  Rather, the contract specified that the vessel

was to be used merely as a means of waterborne transportation for supplies and equipment (i.e.,

“merchandise”) as well as scientific personnel (i.e., “passengers”) from Honolulu destined to

NMFS research camps located at other points within the State of Hawaii.  In view of the fact that

the vessel is foreign-built and therefore precluded from being documented for the coastwise trade,

this transportation constituted an illegal engagement in the coastwise trade in violation of both 46

U.S.C. App.  289 and 883.

                              – 4 –

HOLDING:

     The use of the GLORITA to conduct logistics operations for the NMFS between points

within the State of Hawaii pursuant to the terms of the NOAA contract described above was

violative of 46 U.S.C. App.  289 and 883.

     Parenthetically, we note that in view of our above holding, should you choose to pursue

this matter further, we suggest you contact the District Director, U.S. Customs Service, in

Honolulu.

                              Sincerely,

                              Arthur P. Schifflin

                              Chief

                              Carrier Rulings Branch

cc: District Director

     Honolulu, Hawaii    

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