Coastwise Trade; Ashes; Cremated Remains; 46 U.S.C. App. §§ 289, 883

HQ 226846 April 24, 1996 VES-3-12-RR:IT:EC 226846 GEV CATEGORY: Carriers Arthur Zeigler 5441 Bradford Drive Sacramento, California 95820 RE: Coastwise Trade; Ashes; Cremated Remains; 46 U.S.C. App. §§ 289, 883 Dear Mr. Zeigler: This is in response to your letter dated March 27, 1996, requesting a ruling regarding the use of your vessel SOUTHWIND. The requested ruling is set forth below. FACTS: The SOUTHWIND is a U.S-built vessel previously documented by the U.S. Coast Guard as a commercial fishing vessel. You state that the vessel was engaged in albacore tuna fishing for many years and was never registered as a foreign vessel. The vessel was donated to the California Maritime Academy which kept it for several years before selling it in 1994. A copy of the vessel’s certificate of documentation during the period of time it was owned by the California Maritime Academy is enclosed with your letter and indicates that at that time it was endorsed for pleasure. You purchased the vessel in March of 1996 and are in the process of returning her to commercial use which you state will consist of scattering ashes (cremated remains) at sea. Specifically, you state that subsequent to relocating the vessel from Vallejo, California, to Willapa Bay in the State of Washington, the vessel will make monthly trips beyond the three mile limit for the aforementioned commercial purposes and annual trips to Alaska for the same reason. You wish to have the vessel’s documentation reflect its proposed commercial use. ISSUE: Whether the use of the subject vessel in scattering ashes (cremated remains) as described above is an engagement in the coastwise trade thus requiring a coastwise endorsement on the vessel’s certificate of documentation pursuant to 46 U.S.C. § 12106. LAW AND ANALYSIS: Title 46, United States Code Appendix, § 289 (46 U.S.C. App. § 289, the passenger coastwise law), prohibits the transportation of passengers between points in the United States embraced within the coastwise laws, either directly or by way of a foreign port, in a non- coastwise-qualified vessel (i.e., a vessel that is not U.S.-built, owned and documented). For purposes of § 289, "passenger" is defined as "... any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business." (See § 4.50(b), Customs Regulations, (19 CFR § 4.50(b)) 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. Pursuant to title 19, United States Code, § 1401(c) (19 U.S.C. §1401(c)), the word "merchandise" is defined as "...goods, wares and chattels of every description, and includes merchandise the importation of which is prohibited." Furthermore, Public Law 100-329 (100 Stat. 508; effective June 7, 1988) amended 46 U.S.C. App. § 883 to apply to the transportation of "...valueless material...from a point or place in the United States or a point or place on the high seas within the Exclusive Economic Zone as defined in the Presidential Proclamation of March 10, 1983, to another point or place in the United States or a point or place on the high seas within the Exclusive Economic Zone..." The Exclusive Economic Zone (EEZ) is defined in Presidential Proclamation 5030 of March 10, 1983 (48 FR 10605), as extending outward for 200 nautical miles from the baseline from which the territorial sea is measured. The U.S. Customs Service has promulgated regulations pursuant to the coastwise laws referenced above. These regulations can be found in title 19, Code of Federal Regulations, §§ 4.80a and 4.80b (19 CFR §§ 4.80a, 4.80b) for passengers and merchandise, respectively. 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. In its administration of 46 U.S.C. App. § 289, the Customs Service has ruled that the carriage of passengers entirely within territorial waters, even though the passengers disembark at their point of embarkation and the vessel touches no other coastwise point, is considered coastwise trade subject to the coastwise laws. However, the transportation of passengers to the high seas (i.e., beyond U.S. territorial waters) and back to the point of embarkation, assuming the passengers do not go ashore, even temporarily, at another United States point, often called a "voyage-to-nowhere," is not considered coastwise trade (29 O.A.G. 318 (1912)). With respect to the proposed commercial use of the SOUTHWIND, the ashes (cremated remains) are merchandise as defined by 19 U.S.C. § 1401(c) and are therefore within the purview of 46 U.S.C. App. § 883. Consequently, their transportation from Willapa Bay, Washington (a coastwise point) to Alaska (another coastwise point) is an engagement in the coastwise trade. Furthermore, in view of the fact that Public Law 100-329 amended 46 U.S.C. App. § 883 to apply the restrictions set forth therein to valueless material, the transportation of the aforementioned ashes from Willapa Bay to a point beyond the three mile territorial sea would also constitute an engagement in the coastwise trade unless the ashes are scattered at a point beyond the EEZ. Parenthetically, we note that although the captain, crew and any clergyman conducting a funeral service on board the subject vessel would not be considered passengers for purposes of 46 U.S.C. App. § 289 in view of the fact that they would be connected with the navigation and business of the vessel (see 19 CFR § 4.50(b)), funeral guests would be considered passengers for purposes of that statute and would be prohibited from being transported on a vessel not documented for the coastwise trade unless such transportation was pursuant to a "voyage-to- nowhere" as discussed above. (Customs Ruling 103964 MKT, dated May 22, 1979) As you know, the vessel documentation laws of the United States are administered by the U.S. Coast Guard. We defer to that agency’s expertise as to whether the SOUTHWIND meets the requisite criteria for a coastwise endorsement on its certificate of documentation pursuant to 46 U.S.C. § 12106. HOLDING: The use of the subject vessel in scattering ashes (cremated remains) as described above is an engagement in the coastwise trade thus requiring a coastwise endorsement on the vessel’s certificate of documentation pursuant to 46 U.S.C. § 12106 unless such ashes are scattered at a point beyond the EEZ. Sincerely, William G. Rosoff Chief Entry and Carrier Rulings Branch