HQ 110305: M/V CALIFORNIA ROSE

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 110305

                          June 16, 1989




VES-3-06-CO:R:P:C 110305 GV

CATEGORY: Carriers

David Greenberg
California Ships Inc.
9348 Civic Center Drive, Suite 201
Beverly Hills, California 90210

RE:  M/V CALIFORNIA ROSE

Dear Mr. Greenberg:

     This is in reference to your letter of June 14, 1989,
requesting a reconsideration of our ruling of the same date which
held that the use of the above referenced vessel to shoot off
fireworks is in violation of the Jones Act.

FACTS:

     The M/V CALIFORNIA ROSE is a Norwegian-built, U.S.-owned
vessel.  The subject vessel is not documented as a U.S. vessel by
the U.S. Coast Guard, however, the owner did receive a
certificate of American ownership from the U.S. Embassy in
Copenhagen, Denmark, where the vessel was purchased in 1983.

     It is proposed to have the subject vessel towed from its
current location at a shipyard in Long Beach, California, to a
location approximately 500 yards offshore from the corner of
Sunset Boulevard and the Pacific Coast Highway where it will be
anchored for the purpose of shooting off fireworks from its
deck.  These fireworks displays will be launched on July 4, 1989,
as well as several other evenings during the months of June, July
and August.  Pacific Bay Marine Shipyard in Long Beach,
California, plans to construct temporary wood and sand boxes for
the vessel's deck for the fireworks which will be removed at the
end of the summer.  The pyrotechnic experts involved (i.e.,
Zambelli International) in the actual operation of the fireworks
displays will be transported by a private launch out of Marina
Del Ray, California, to the subject vessel and return that
evening after the displays are over.
                                2

     We note, however, that subsequent to our receipt of the
above information, we were informed that contrary to the
impression given by the owner of the M/V CALIFORNIA ROSE (i.e.,
that this venture was nothing more than an invitation to use this
vessel for which no compensation would be received) these
fireworks displays were the object of a competitive bidding
process ultimately resulting in the awarding of a contract by
Gladstones Restaurant which is seeking to use these displays as a
source of advertisement.  Furthermore, one of the competitive
bidders for the contract is the owner of a U.S.-built, owned and
documented (i.e., coastwise-qualified) barge.

     Based on the above conflicting information, and our lack of
knowledge as to how the individuals concerned (crew and
passengers, as well as pyrotechnicians) and the materials used
(e.g., fireworks, supporting structures, and the like) will be
transported, we issued ruling VES-3-06-CO:R:P:C 110229 GV, dated
June 14, 1989, denying the prospective use of the subject
vessel.  However, the owner of said vessel requested that Customs
reconsider the above ruling on the premise that the information
upon which it was based was inadequate, incomplete, or inaccurate
as well as conflicting.  In view of this allegation we will
reconsider this matter in light of the following information.
The competitive bidding in question does not involve the use of a
vessel but rather the construction of temporary bases for the
firing of the fireworks and for the towing of vessels from Long
Beach to Santa Monica Bay.  In September when the vessel is
returned to the shipyard (Pacific Bay Marine) in Long Beach the
firing pads and generator used for lighting will be removed.  The
subject vessel will be towed to its anchorage by a coastwise
qualified tug (the MULTINOMA) and will carry neither passengers
nor merchandise of any kind.  On the nights when the fireworks
will be shot off the pyrotechnicians will be ferried to the
anchored vessel by a coastwise-qualified vessel bringing the
fireworks with them and will return with any live fireworks to
Marina Del Rey, the point of original boarding/lading.

ISSUE:

     Whether a foreign-built vessel, towed by a coastwise
qualified tug to an anchorage within U.S. territorial waters, may
be used for the purpose of shooting off fireworks without
violating 46 U.S.C. App. 883 when the fireworks and accompanying
pyrotechnicians are transported to it by a coastwise-qualified
vessel.

LAW AND ANALYSIS:

     Title 46, United States Code Appendix, 883 (46 U.S.C. App.
883), often called the "Jones Act", provides in part, that no
                                3

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).  Pursuant to
19 U.S.C. 1401(c), the word "merchandise" means goods, wares and
chattels of every description and includes merchandise the
importation of which is prohibited.  Furthermore, Public Law 100-
239 (102 Stat. 588) amended 883 to apply to the transportation
of "valueless material..."

     Pursuant to 4.80b, Customs Regulations (19 CFR 4.80b) a
coastwise transportation of merchandise takes place, within the
meaning of the coastwise laws, when merchandise laden at a point
embraced within the coastwise laws ("coastwise point") is unladen
at another coastwise point, regardless of the origin or ultimate
destination of the merchandise.

     Points embraced within the coastwise laws discussed above
include all points within the territorial waters of the United
States, including points within a harbor, as well as artificial
islands, installations, and devices permanently or temporarily
attached to the seabed of the outer continental shelf for the
purpose of exploring for, developing or producing resources
therefrom.  The territorial waters of the United States consist
of the territorial sea, defined as the belt, 3 nautical miles
wide, adjacent to the coast of the United States and seaward of
the territorial sea baseline.

     In regard to the facts presented, it is apparent that while
the M/V CALIFORNIA ROSE may be a point of lading and unlading for
merchandise at its anchorage, the vessel itself will not be used
to transport merchandise between coastwise points.  Accordingly,
its sole use as a stationary deck upon which fireworks will be
launched does not constitute a violation of 46 U.S.C. App. 883.

     We reiterate that any vessel used to transport the
fireworks, related paraphernalia, and pyrotechnicians to and
from the M/V CALIFORNIA ROSE must be coastwise-qualified in
accordance with 883 as well as 46 U.S.C. App. 289 (the
passenger coastwise law).  Furthermore, in regard to towing
within territorial waters, the Customs Service has interpreted
the towing statute (46 U.S.C. App. 316(a)) consistently with its
interpretation of 883.  Accordingly, a non-coastwise-qualified
vessel is prohibited from towing any vessel, other than a vessel
in distress, between coastwise points.
                                4

HOLDING:

     A foreign-built vessel, towed by a coastwise-qualified tug
to an anchorage within U.S. territorial waters may be used for
the purpose of shooting off fireworks without constituting a
violation of 46 U.S.C. App. 883, when the fireworks and
accompanying pyrotechnicians are transported to it by a
coastwise-qualified vessel.

                              Sincerely,




                              B. James Fritz
                              Chief
                              Carrier Rulings Branch