VES-3-CO:R:IT:C 112237 GFM
Mr. Miguel A. Ferrer Roig
Director, Special Programs
Spain '92 Foundation
1821 Jefferson Place, N.W.
Washington DC 20036
RE: Coastwise transportation; Waiver of coastwise laws;
Transportation of replica vessels; Semi-submersible vessel;
46 U.S.C. App. 883
Dear Mr. Roig:
Reference is made to your letter of May 13, 1992, in which
you request a ruling regarding the use of a non-coastwise-
qualified, semi-submersible vessel in the transportation of
replica ships between coastwise points.
FACTS:
The requestor seeks a Jones Act waiver for the transport of
foreign-flag replica vessels, the Nina, Pinta, and the Santa
Maria, from the port of Boston, Massachusetts to San Francisco,
California in August of 1992. Said transportation is to be
effected through the use of a semi-submersible vessel which, it
is claimed, is the only type vessel which can ensure safe, timely
and economical transport of the replicas. Requestor further
alleges that U.S.-registered vessels of this type are either non-
existent or otherwise unavailable.
ISSUE:
Whether a waiver of the statute pertaining to coastwise
merchandise transportation may be authorized for the
transportation of replica ships directly between coastwise
points.
LAW AND ANALYSIS:
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
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...
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 navigation laws (including the coastwise laws) can only
be waived under the authority provided by the Act of December 27,
1950 (64 Stat. 1120; note preceding 46 U.S.C. App. 1). This
statute provides that, "...[t]he head of each department or
agency responsible for the administration of the navigation and
vessel inspection laws is directed to waive compliance with such
laws upon the request of the Secretary of Defense [and] [t]he
head of such department or agency is authorized to waive
compliance with such laws ... either upon his own initiative or
upon the written recommendation of the head of any Government
agency whenever he deems that such action is in the interest of
national defense."
Owing to the necessity for some national defense
justification, requests for waiver of the coastwise laws are
infrequently granted. In the present matter, no facts have been
presented upon which such a justification can stand. The
activities in question are not related to national defense, but
rather are commercial in nature. As such, they do not constitute
the types of activities which are entitled to a waiver.
HOLDING:
The proposed direct transportation of replica vessels
between coastwise points on non-coastwise-qualified vessels is
not a transportation for which a national defense waiver from the
restrictions of the coastwise merchandise transportation statute
may be justified.
Sincerely,
B. James Fritz
Chief