Coastwise transportation; Merchandise; Passengers; Oceanographic research; 46 U.S.C. App. 289 and 883

HQ 112205 May 6, 1992 VES-3-14-CO:R:IT:C 112205 LLB CATEGORY: Carriers Mr. Henry Tomingas Ocean Explorers P.O. Box 111321 Anchorage, Alaska 99511 RE: Coastwise transportation; Merchandise; Passengers; Oceanographic research; 46 U.S.C. App. 289 and 883 Dear Mr. Tomingas; Reference is made to your facsimile transmission of April 13, 1992, in which you request that we rule upon the use of a vessel in territorial waters for the purpose of conducting oceanographic research activities. FACTS: It is proposed that the vessel BERING EXPLORER, which apparently bears a State registration number and which is of unknown qualification under the terms of the coastwise laws, be utilized to conduct oceanographic research activities on the Yukon River in Alaska. It is stated that the mission of the vessel will involve mapping and survey operations. ISSUE: Whether oceanographic research in the form of survey and mapping operations conducted within the territorial waters of the United States is considered an engagement in the coastwise trade. 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. For your general information, we have consistently interpreted this 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, and 19 C.F.R.  4.80). Further, 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 section 4.50(b), Customs Regulations (19 CFR 4.50(b)). The coastwise law pertaining to the transportation of merchandise, section 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 that: No merchandise 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 trans- portation, 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... 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 the internal waters, landward of the territorial sea baseline, in cases where the baseline and the coastline differ. These laws have also been interpreted to apply to transportation between points within a single harbor. Merchandise, as used in section 883, includes any article, including even materials of no value (see the amendment to section 883 by the Act of June 7, 1988, Pub. L. 100-329; 102 Stat. 588). The Customs Service has long held that the use of a vessel solely in the conduct of oceanographic research is not a use in the coastwise trade. Accordingly, the use of a non-coastwise- qualified vessel to conduct oceanographic research in the form of survey and mapping operations within territorial waters, including the transportation of persons and equipment/materials necessary to complete that mission is not violative of the coastwise laws (Ruling Letter 109344, July 6, 1988). HOLDING: A non-coastwise-qualified vessel may be used within the territorial waters of the United States for purely oceanographic research purposes without violating the coastwise laws. Sincerely, B. James Fritz Chief