VES-3/VES-10-03 CO:R:P:C 109649 PH
Brack J. Jaskey, Esq.
          Williams, Kastner & Gibbs
          1400 Washington Building
          1325 Fourtg Avenue
          Post Office Box 21926
          Seattle, Washington 98111-0040
          RE:  Coastwise Transportation in a Foreign-Built Barge of
          Merchandise Owned by the Barge Owner
          Dear Mr. Jaskey:
              This in response to your letter of July 12, 1988, in
          which you request a ruling on the applicability of the
          coastwise laws to the transportation from Bellingham,
          Washington, to Ketchikan, Alaska, in a foreign-built barge of
          merchandise owned by the barge owner.
          FACTS:
              You state that your client, a construction company, owns
          a foreign bottom barge.  Your client proposes to use this
          barge to transport some of his equipment from Bellingham,
          Washington, to Ketchikan, Alaska.  The barge would be towed
          by a United States registered tug.  You state that your
          client neither intends to resell nor in any way distribute
          the equipment which will be transported.  You contend that
          this transportation of the equip- ment is not violative of 46
          U.S.C. App. 883 because the equipment would not be considered
          "merchandise" for purposes of that statute.
          ISSUE:
              Does the transportation between points in the United
              States in a foreign-built vessel of articles owned by the
          owner of the vessel violate 46 U.S.C. App. 883 when the
          articles are intended for his use and not for resale or
          distribution?
          LAW AND ANALYSIS:
              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, in pertinent part, 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 great- er, 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 transporta-
                    tion, 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
                    ....
              Section 4370 of the Revised Statutes, as amended (R.S.
          4370; 46 U.S.C. App. 316(a), the coastwise towing statute),
          prohibits the towing of any vessel, other than a vessel in
          distress, by a vessel not documented under the United States
          flag to engage in the coastwise or Great Lakes trade between
          ports or places in the United States embraced within the
          coastwise laws, either directly or by way of a foreign port
          or place, or for any part of such towing, or such towing
          between points in a harbor of the United States.
              Each of the above laws was recently amended by the Act of
          June 7, 1988 (Public Law 100-329).  Section 883 was amended
          so that the term "merchandise" includes valueless material
          and so that it applies to the transportation of "valueless
          material or any dredged material regardless of whether it has
          commercial value, from a point or place in the United States
          or a point or place on the high seas within the Exclusive
          Economic Zone as de- fined in the Presidential Proclamation
          of March 10, 1983 [(EEZ)], to another point or place in the
          United States or a point or place on the high seas within
          that [EEZ]."  Section 883 was also amended so that the
          penalty for violation of the statute now is forfeiture of the
          merchandise transported or a monetary amount up to the value
          thereof, "or the actual cost of the transportation, whichever
          is greater."  Section 316(a) was amended so that it applies
          to the towing of "any vessel transporting valueless material
          or any dredged material, regardless of whether it has
          commercial value, from a point or place in the United States
          or a point or place on the high seas within the [EEZ] to
          another point or place in the United States or a point or
          place on the high seas within that [EEZ]."
              The term "merchandise," as used in 46 U.S.C. App. 883, is
          not defined for purposes of that provision.  We have used the
          definition of "merchandise" found in section 401(c), Tariff
          Act of 1930, as amended (19 U.S.C. 1401(c)) in our
          application of section 883.  "Merchandise" is defined in
          section 1401(c) as meaning "goods, wares, and chattels of
          every description, and [including] merchandise the
          importation of which is prohibited, and monetary instruments
          as defined in section 5312 of Title 31."
              We have held that baggage which is accompanied by its
          owner as a passenger aboard a vessel is not "merchandise" for
          purposes of section 883 and its coastwise transportation is
          governed by the coastwise statute applicable to passengers
          (section 8, Act of June 19, 1886, 24 Stat. 81; 46 U.S.C.
          App.  289) (see Autolog Corp. v. Regan, 731 F.2d 25 (1983),
          sustaining this position).  However, we have never held that
          cargo which is owned by the owner of a vessel and is
          transported solely for the use of the owner is not
          "merchandise" for purposes of section 883.  Indeed, we have
          held that "[i]t is immaterial [for purposes of section 883]
          that any cargo so transported [i.e., transported between
          coast- wise points] may be owned by the vessel owner."  This
          position is consistent with the intent of the Congress as
          shown in its enactment of the so-called sixth proviso to
          section 883 (the Acts of September 21, 1965, and August 11,
          1968; Public Law 89-194, 79 Stat. 823 and Public Law 90-474,
          82 Stat. 700, respectively).
              Accordingly, the transportation of your client's
          equipment in his foreign-built barge from Bellingham to
          Ketchikan would be prohibited by 46 U.S.C. App. 883.  The
          towing of your client's barge from Bellingham to Ketchikan
          would be prohibited by 46 U.S.C. App. 316(a) unless the
          towing vessel is documented to engage in the coastwise trade
          or the Great Lakes trade.
          HOLDING:
              The transportation between points in the United States in
          a foreign-built vessel of articles owned by the owner of the
          vessel and intended for his use and not for resale or
          distribution does violate 46 U.S.C. App. 883.
                                        Sincerely,
                                        B. James Fritz
                                        Chief
                                        Carrier Rulings Branch