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HQ 115486

September 14, 2001

VES-3-07-RR:IT:EC 115486 GEV


George A. Quadrino, Esq.
Manelli Denison & Selter PLLC
2000 M Street, N.W. 7th Floor
Washington, D.C. 20036-3307

RE: Coastwise Trade; 46 U.S.C. App. § 883

Dear Mr. Quadrino:

This is in response to your fax dated September 13, 2001, on behalf of Independent Container Line Ltd. (ICL), requesting a ruling regarding the transfer of approximately 386 containers between two of the vessels the company operates in the North Atlantic-North Europe trade, the INDEPENDENT ACTION and the INDEPENDENT VENTURE. Our ruling in this matter is set forth below.


ICL is an ocean common carrier, headquartered in Richmond, VA, which operates four chartered vessels on the following schedules: Antwerp-Liverpool-Chester, PA-Richmond, VA-Chester-Antwerp. Although not specified in your letter, we are assuming for the purposes of this ruling that these vessels are not documented to engage in the coastwise trade. We understand the circumstances of this incident to be as follows.

The turbocharger on the INDEPENDENT ACTION failed on September 6, 2001, slowing the vessel substantially and delaying her arrival at the port of Chester from September 10 to September 12. On the same date, the U.S. Coast Guard and Germanischer Lloyd gave conditional approval for the INDEPENDENT ACTION to sail coastwise from Chester to Richmond and return. Approval to transit the Atlantic was refused, however, as was a request for the vessel to sail to Halifax where air freight connections are better.

The vessel owners were able to locate spare parts in Europe and arranged for air transport from Munich and London to Philadelphia. Unfortunately, after the tragedies in New York and Washington caused the grounding of all air traffic, the flight from Munich turned back, while the London flight never departed. Due to the special nature of these parts, there are no others available either in the U.S. or overseas. The latest setback is the announcement that passenger aircraft will not be permitted to carry freight.

The INDEPENDENT VENTURE, the next vessel in ICL’s rotation, is scheduled to arrive at Chester from Liverpool on September 16, 2001. Also that day, the INDEPENDENT ACTION is scheduled to return to Chester from Richmond. Ordinarily, the INDEPENDENT VENTURE would discharge her Chester cargo and sail for Richmond to discharge/load and return to Chester for loading before returning to Antwerp. However, as ICL has been refused permission for the INDEPENDENT ACTION to proceed beyond Chester, the vessel will remain there until the spare parts have been received from Europe and the vessel is repaired.

Accordingly, ICL requests permission for the INDEPENDENT ACTION, which will be entering Chester under disabling circumstances, to transfer approximately 218 Richmond-origin containers to the INDEPENDENT VENTURE for delivery in Europe. The INDEPENDENT VENTURE would then alter its schedule and proceed directly back to Europe after discharging all import containers at Chester, including approximately 168 containers destined for Richmond.

Relief is also requested to permit the INDEPENDENT ACTION, once it has been repaired, to load and carry to Richmond the 168 containers that were prematurely discharged by the INDEPENDENT VENTURE when that vessel altered her itinerary and returned to Europe.


Whether the proposed transportation of containers as described above violates 46 U.S.C. App. § 883.


Title 46, United States Code Appendix, § 883 (46 U.S.C. App. § 883, the merchandise coastwise law 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 one that is coastwise-qualified (i.e., U.S.-built, owned and documented).

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 navigation laws (including 46 U.S.C. App. § 883) 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 lawseither 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.”

With respect to the proposal under consideration, we note at the outset that the transportation of containers between Chester and Richmond by the two vessels in question constitutes coastwise trade in contravention of 46 U.S.C. App. § 883. Neither the statute nor the Customs Regulations promulgated pursuant thereto affords the relief you request.

At the outset we note that it is readily apparent that this proposal does not meet the national defense criterion for a waiver of the Jones Act as discussed above. Furthermore, § 4.34, Customs Regulations (19 CFR § 4.34) cited in your letter is inapplicable in this case. The provisions of § 4.34(a) address cargo that was, “prematurely landedthrough error or emergency” Not only is the proposed landing of the cargo under this proposal intentional and not premature, the emergency contemplated under § 4.34(a) pertains to the cargo being transported which is not the case in the facts presented.

Furthermore, the provisions of § 4.34(a) apply only to “inward foreign cargo” The 218 Richmond-laden containers bound for Chester and then to Europe cannot be considered to be “inward foreign cargo”. Consequently, the provisions of § 4.34 do not apply to this case.


The proposed transportation of containers as described above violates 46 U.S.C. App. § 883.


Larry L. Burton
Entry Procedures and Carriers Branch

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