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HQ 112849

September 24, 1993

VES-7-CO:R:IT:C 112849 LLB


Mr. Heung Y. Kim
Kim Marine Documentation, Inc.
720 Olive Way, Suite 1515
Seattle, Washington 98101

RE: Coastwise trade; Fisheries; Transportation of fish; Territorial waters; Limited coastwise endorsement; 46 U.S.C. App. 883; 46 U.S.C. 12101

Dear Mr. Kim:

Reference is made to your letter of August 13, 1993, which requests that Customs consider the legality of a certain contemplated transportation aboard a United States-flag vessel with fisheries, registry, and limited coastwise endorsements.


The purchase of the vessel PACIFIC WARRIOR is being contemplated by Royal Aleutian Seafoods, Inc. (RASI). The vessel is documented under the laws of the United States and is endorsed for fisheries, registry, and limited coastwise trade purposes. The coastwise trade limitation states that the vessel, "...may only transport valueless material in coastwise trade or dredged material in accordance with the strictures of Pub. L. 100-329

It is proposed that the vessel operate in "Alaskan waters", which we interpret to mean operation within the three-mile territorial waters of the United States, where already-harvested fish will be purchased and transported to a company-owned processing plant at a shore point in Alaska. You posit that the above-described activities will not constitute a violation of the coastwise trade merchandise statute since the purchased fish will be company property. You believe that the operation is permissible since the vessel's document is endorsed for the fisheries.


Whether the transportation of fish from a point originating within the territorial waters of the United States to another coastwise point may be legally accomplished aboard a vessel with fisheries and limited coastwise trade endorsements.


The Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987 (the "Act", Pub. L. 100-239; 101 Stat. 1778) amended 46 U.S.C. 12101(6) by changing the definition of "fisheries" to include the "processing, storing, and transporting (except in foreign commerce)" of fish and related fishery resources in United States navigable waters and the Exclusive Economic Zone (EEZ), as well as the catching-related activities provided for in the former definition. Accordingly, the new definition of fisheries, now set forth in 46 U.S.C. 12101(a)(1) reads as follows:

"fisheries" includes processing, storing, transporting (except in foreign commerce), planting, cultivating, catching, taking, or harvesting fish, shellfish, marine animals, pearls, shells, or marine vegetation in the navigable waters of the United States or in the exclusive economic zone.

Title 46, United States Code Appendix, section 883 (46 U.S.C. App. 883), the coastwise merchandise statute often called the "Jones Act", provides, in part, that no merchandise shall 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 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 (i.e., a coastwise-qualified vessel). This statute has been found to apply even to the transportation of merchandise from point to point within a harbor. Pursuant to 19 U.S.C. 1401(c), the word "merchandise" means goods, wares and chattels of every description and includes fish and fish products.

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 legislative history of the Anti-Reflagging Act of 1987 indicates that one of the purposes of its enactment was to reconcile differences between United States fisheries laws and maritime law. In the House Report on this Act (H.R. Rep. No. 100-423, 100th Cong., 1st Sess. (1987); published at 1987 U.S.C.C.A.N. 3245), this purpose is described as the "genesis of the legislation." The aforementioned reconciliation, however, cannot be construed as a means of superseding or overriding the coastwise laws. It should be noted that Customs, in rulings involving the coastwise laws (specifically 46 U.S.C. App. 883),
has stated that there is no transportation in violation of section 883 unless there is both a lading and an unlading at a coastwise point, based on the precise reading that must be given to all punitive statutes. (see 19 CFR 4.80b(a)) Section 883 provides, in pertinent part, that "[n]o merchandise shall be transported by water, or by land and water,...between points in the United States...embraced within the coastwise laws." The clear language of section 883, which contains no provision excluding proprietary property from its application, contemplates both a lading at a coastwise point and an unlading at a coastwise point. The definition of "fisheries" in 46 U.S.C. 12101(a)(1) includes the transportation of fish in the EEZ and the navigable waters of the United States. It does not refer to a coastwise movement, merely a transportation.

Accordingly, with the exception of a catching vessel transporting its own catch, and any incidental movement of an anchored vessel due to tides, high seas, etc., the transportation by a vessel of fish and fish products from their point of lading in the U.S. territorial sea to their point of unlading at another coastwise point constitutes coastwise trade pursuant to 46 U.S.C. App. 883. Vessels engaged in this activity would be required to have both a fishery endorsement and a coastwise endorsement on their certificate of documentation. In the case of the PACIFIC WARRIOR, the endorsement issued for the coastwise trade is specifically limited to the transportation of valueless material and dredge spoil, and could not authorize the proposed transportation of fish.


The transportation of fish from one coastwise point (a point within the territorial waters of the United States) to another coastwise point is a movement in the coastwise trade requiring an unrestricted endorsement for that trade. The same transportation could be accomplished with the use of a fisheries endorsement if the transportation were to originate at a point beyond the three-mile territorial waters and end at a coastwise point.


Arthur P. Schifflin

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