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