Coastwise merchandise statute; Non-qualified barge; Vacuum suction; Bulk cement; 46 U.S.C. App. 883

HQ 111127 January 28, 1991 VES-3-CO:R:IT:C 111127 LLB CATEGORY: Carriers Mr. William D. Outman, II Baker and McKenzie 815 Connecticut Avenue Suite 1100 Washington, D.C. 20006-4078 RE: Coastwise merchandise statute; Non-qualified barge; Vacuum suction; Bulk cement; 46 U.S.C. App. 883 Dear Mr. Outman: Reference is made to your letter of June 18, 1990, in which you request a ruling regarding the applicability of the coastwise merchandise statute to the planned activities of your client, La Auxiliar de la Construccion, Inc. FACTS: It is proposed that your client, a Spanish corporation, purchase a non-self-propelled barge currently documented under United States law and reposing in St. Louis, Missouri. The barge would be leased for the remainder of its useful life to a U.S. corporation in which your client owns the controlling interest. The barge will have installed upon it an industrial-size vacuum suction pump, which installation will be accomplished in Florida. This pump will enable the barge to be used to discharge bulk powdered cement from arriving cargo vessels. It is anticipated that inbound vessels would arrive at a berth at the Fort Pierce Oil Company, Florida, at which time the barge in question would be made fast alongside. An arm supporting a suction hose would be lowered into a particular hold of the cargo vessel and the suction pump would be activated to remove the bulk cement cargo via the hose. The cement would move through the hose, which would be supported by floatation devices, and would be deposited in a shoreside storage silo. The barge would remain immobile while unloading any particular hold, and would be moved as necessary to enable its hose to reach various holds. After unloading operations have been completed, the vessel would move, empty of cargo, to its mooring position. ISSUE: Whether the use of a modified barge, as described in this ruling, is a permissible use under the coastwise laws. LAW AND ANALYSIS: Title 46, United States Code App., section 883 (46 U.S.C. App. 883) in pertinent part, prohibits the transportation of merchandise 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. Customs has held 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 it is taking place. However, movement of merchandise while it is aboard the vessel or suspended from the crane, even between two points within a harbor, which is neither necessary nor incidental to a lifting operation by the crane would constitute coastwise transportation of merchandise within the purview of 46 U.S.C. App. 883. In the present matter it is stated that the barge will remain stationary during actual unloading operations and will not carry any merchandise while being aligned adjacent to vessel hold areas between unloading operations. In light of these facts, we find that the proposed operation is permissible under 46 U.S.C. App. 883. HOLDING: Following a thorough review of the facts as presented and after analysis of the applicable law and precedents, we find that the barge under consideration may be used in the described manner without consequence under the coastwise merchandise statute, 46 U.S.C. App. 883. Sincerely, B.James Fritz Chief Carrier Rulings Branch