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46 U.S.C. App. 292 Notes - Nonapplicability to Certain Vessels

U. S. Court of Federal Claims - Key Excerpts

The court concludes that the relevant exception in the 1992 amendment is amenable to a construction based on its plain meaning. The exception contains four exemptions from the prohibition. The exception states that the prohibition of less than 75% U.S.-citizen-owned vessels that may engage in dredging does not apply to two vessels, the STUYVESANT and the COLUMBUS, and two other types of vessel described by either the percentage participation or status of chartering entity. Each of these is a limited exception directed to a vessel, not to a company. COLUMBUS is exempted, yet is prohibited from transporting dredge material of value between places within navigable U.S. waters. Section (C) exempts vessels engaged in dredged material excavation only if it is a minor part of a larger construction contract and the vessel was “owned or chartered by a corporation that had on file with the Secretary of Transportation, on August 1, 1989, the certificate specified in section 27A of the Merchant Marine Act, 1920 (46 App. U.S.C. 883-1).” The exemption in section (D) is limited to documented vessels chartered to certain entities satisfying the August 1, 1989 documentation requirements and not engaged in federally funded navigation dredging projects. All four of these exceptions thus are directed to vessels, not to any named or otherwise described company. 

The plain meaning construction is valid whether or not Stuyvesant Dredging Company had any non-hopper dredging vessels chartered to itself or to an entity in which it had an ownership interest as of the date of enactment. Defendant is correct in that the exception to> the 1992 amendment would allow Stuyvesant Dredging Company to join in future entities, and charter through them. Defendant, however, fails to acknowledge that any such entities still are restricted by (A)(iii)(a) and (b), insofar as they may charter non-hopper vessels. An arrangement would satisfy this part of the exception only if the chartered non-hopper vessel “is necessary . . . to fulfill dredging obligations under a specific contract,” supplementing a hopper vessel documented as of 1992, “including any extension periods,” or to complete temporary replacement of a hopper or non-hopper performing a hopper contract. Neither defendant nor intervenor has argued that Bean Stuyvesant, LLC, is chartering the MERIDIAN to fulfill a specific contract in existence, including any extension period, at the time of the enactment. 

Whether C.F. Bean, LLC, intends to develop more ventures with Stuyvesant Dredging Company or Stuyvesant with other entities is irrelevant; and no evidence has been placed into the record as to its intentions. See supra note 18. The court, however, cannot construe theexception in a way that could enable the limitation to swallow the amendment. If defendant’s and intervenor’s plain meaning were accepted, and it would not be plain, the result would be that foreign entities could charter non-hoppers not yet documented for any dredging for the next 30 years. The exception would disappear because it would allow for unlimited expansion by Stuyvesant Dredging Company into the non-hopper dredging business. “Strict adherence to the language and structure of [an] Act is particularly appropriate where, as here, a statute is the result of a series of carefully crafted compromises.” Community for Creative Non- Violence v. Reid, 490 U.S. 730, 748 n.14 (1989).  (Norfolk Dredging Company, Inc. v. U. S. and Bean Stuyvesant, L.L.C., No. 03-2225C, Filed November 26, 2003) (pdf)

U. S. Court of Federal Claims - Listing of Decisions

For the Government For the Protester
  Norfolk Dredging Company, Inc. v. U. S. and Bean Stuyvesant, L.L.C., No. 03-2225C, Filed November 26, 2003 (pdf)

U. S. Court of Appeals for the Federal Circuit - Key Excerpts

The Court of Federal Claims’ interpretation erroneously adds conditions not present in the statutory language. Neither the plain language of exception (A)(iii) nor the structure of the three exceptions pertaining to SDC provides any basis for the court’s conclusion that non-hopper dredges could only be used in a supplemental or replacement capacity to fulfill contracts expressly calling for the services of the vessel STUYVESANT or other hopper vessels documented as of 1992. If Congress had intended these additional restrictions, it could easily have added express language to that effect. Neither the Court of Federal Claims nor Norfolk indicated any language in the statutory exceptions to restrict the charter of non-hopper dredges solely to “supplement,” or fulfill contracts calling for, the vessel STUVYESANT or other hopper dredges documented as of 1992. There is no express language requiring that non-hopper dredges only supplement, as temporary replacements, hopper dredges that satisfy the requirements of exception (A)(ii). See Oceans Act of 1992, § 5501(a)(2)(A)(iii). It is telling that exception (A)(ii) specifically requires chartered hopper dredges to be “documented under [46 U.S.C. ch. 121] before the effective date of this Act,” id. § 5501(a)(2)(A)(ii), which was November 24, 1992. Exception (A)(iii) lacks a similar clause. See id. § 5501(a)(2)(A)(iii). We conclude that such an omission was intentional. See Duncan v. Walker, 533 U.S. 167, 173-74 (2001) (noting that where Congress introduces language in one section yet omits it in another, the disparate inclusion or exclusion is deemed intentional). Finally, contrary to the Court of Federal Claims’ contentions, Norfolk II, 58 Fed. Cl. at 758, and Norfolk’s arguments, a plain meaning interpretation does not cause the exception to swallow the rule. Exception (A)(iii) does not exempt every non-hopper dredge chartered to commercial entities in which SDC has an ownership interest, but only those that meet the additional criteria enumerated in the exception. The non-hopper dredges must be chartered “to fulfill dredging obligations under a specific contract” or in a “temporary replacement capacity” for a disabled vessel, and the charter must occur before the exception expires. Oceans Act of 1992, § 5501(a)(2)(A)(iii).  (Norfolk Dredging Company, Inc. v. U. S. and Bean Stuyvesant, L.L.C.,Numbers 04-5040 and 5041, July 7, 2004) (MS Word)

U. S. Court of Appeals for the Federal Circuit - Listing of Decisions

For the Government For the Protester
Norfolk Dredging Company, Inc. v. U. S. and Bean Stuyvesant, L.L.C.,Numbers 04-5040 and 5041, July 7, 2004 (MS Word)  


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