VES-3-07 CO:R:P:C 111412 JBW
Mr. David S. Berry
Caicos Corporation
528 Winslow Way West
Bainbridge Island, WA 98110
RE: Coastwise; Foreign-Built; Pile Driving; Derrick Barge; 46
U.S.C. App. 883; 46 U.S.C. App. 289; 46 U.S.C. App.
316(a).
Dear Mr. Berry:
This letter is in response to your request, dated
November 19, 1990, for a ruling on the application of the
coastwise laws to the use of a non-coastwise-qualified derrick
barge in United States waters.
FACTS:
The Caicos Corporation is a marine general contractor
operating in the Puget Sound area of Washington State. Caicos
wishes to use a Canadian-built derrick barge as a pile-driver at
different points in United States waters. You stated by
telephone that the barge, while operating, will be secured to the
seabed either by anchors or otherwise. Transportation of workers
to and from the barge will likely be made by skiffs under five
net tons.
ISSUE:
Whether the coastwise laws prohibit the use of a foreign-
built derrick barge as a pile-driver in United States waters.
LAW AND ANALYSIS:
The coastwise laws of the United States prohibit the
transportation of merchandise between points in the United States
embraced within the coastwise laws in any vessel other than a
vessel built and documented under the laws of the United States
and owned by persons who are citizens of the United States. 46
U.S.C. App. 883 (Supp. III 1985)(referred to as "the Jones
Act"). Generally, the coastwise laws apply to points within the
territorial sea of the United States, 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. Headquarters Ruling Letter 111275, dated November 13,
1990.
The Customs Service has consistently held that a non-
coastwise-qualified vessel used as a moored facility within
territorial and internal waters does not engage in the coastwise
trade and consequently does not violate the coastwise laws, or
any other law administered by the Customs Service, provided that
the vessel remains stationary. E.g., C.S.D. 89-107, 23 Cust. B.
& Dec., No. 44, 8, 9 (1989). Thus, the use of a foreign-built,
moored, stationary barge for pile driving operations does not
appear to violate the coastwise laws. If, however, the vessel is
not secured or attached to the seabed while in use, then such
operations would be prohibited by the coastwise laws.
We note that although the vessel under consideration may
not be engaging in the coastwise trade while in operation as a
moored, stationary pile driving facility, the vessel itself will
become a coastwise point if used as such. C.S.D. 89-107.
Therefore, any vessel moving merchandise or passengers between
the stationary platform and another coastwise point must be
documented for the coastwise trade. 46 U.S.C. App. 289 & 883
(1982 & Supp. III 1985). Furthermore, the barge itself may not
have any passengers or merchandise aboard during its initial
movement to the work site, during its movement from work site to
work site, or during its movement following the completion of the
project, provided these sites are points subject to the
application of the coastwise laws. C.S.D. 89-107. Finally,
United States law requires that a coastwise-qualified vessel tow
the vessel under consideration between coastwise points. 46
U.S.C.A. App. 316(a) (West Supp. 1990).
You stated that transportation of the work crew will likely
be transported from shore to the barge by a power skiff
measuring less than five net tons. These vessels would be
ineligible for coastwise documentation by the Coast Guard. 46
U.S.C.A. 12102 (West Supp. 1990). Vessels of less than five net
tons, however, are not precluded from engaging in the coastwise
trade simply because they are ineligible for documentation
provided they are otherwise coastwise qualified--that is, United
States built and owned. 19 C.F.R. 4.80(a)(2) (1990).
HOLDING:
The coastwise laws do not prohibit the use of a non-
coastwise-qualified barge for pile-driving operations provided
that the barge, while operating, is moored and remains
stationary. Under such circumstances, the barge becomes a
coastwise point itself. Transportation of passengers and
merchandise to or from the barge and other coastwise points must
be by coastwise-qualified vessels. While being moved from work
site to work site, the barge may not transport passengers or
merchandise. Finally, coastwise-qualified vessels must be used
to tow the barge between coastwise points.
Sincerely,
Harvey B. Fox
Director
Office of Regulations and Rulings