VES-10-01-CO:R:IT:C 113156 BEW
Captain H. Doug Wilson, III
Research & Recovery, Inc.
6247 108 Avenue North
Pinellas Park, Florida 34666
RE: Coastwise trade; salvage; 46 U.S.C. App 316(d)
Dear Captain Wilson:
This is in response to your letter of July 7, 1994, which
requests a ruling regarding the use of a foreign-flag vessel in
salvage operations on the "ATOCHA" located at Latitude 20o 30'
01"N and Longitude 82o 15' 53"W, a point outside the territorial
waters of the United States.
FACTS:
You state that you are sub-contractors of the Mel Fisher Maritime
Heritage Corporation currently doing salvage on the "ATOCHA"
location. You state that you are using the "WARM WIND", a 96
foot Honduras-flag vessel to assist in the subject salvaging
operation. You state that the "WARM WIND" will be under your
command and will be working American citizens. You state that
the subject vessel will be at anchor at all times, never working
more than 100 yards from the above stated location. Your letter
does not state which vessel will be used for the transportation
of recovered artifacts to a U.S. port of entry.
ISSUE:
Whether the use of a foreign-flag vessel as a base for treasure
hunting operations outside the territorial waters of the United
States is a violation of U.S. coastwise laws.
LAW AND ANALYSIS:
Paragraph (d) of the Act of June 11, 1940, as amended (46 U.S.C.
App. 316(d)), provides, in pertinent part, that:
No foreign vessel shall, under penalty of
forfeiture, engage in salvaging operations on
the Atlantic or Pacific coast of the United States, in any portion of the Great Lakes or
their connecting or tributary waters,
including any portion of the Saint Lawrence
River through which the international
boundary line extends, or in territorial
waters of the United States on the Gulf of
Mexico, except when authorized by a treaty or
in accordance with the provisions of [46
U.S.C. App. 725] ...
Similarly, Customs regulations (19 CFR 4.97) prohibit salvage "in
territorial waters of the U.S." by vessels other than a vessel of
the U.S., a numbered motorboat owned by a citizen, Mexican or
Canadian vessels as authorized by treaty, or a vessel which has
been granted special permission by the Commissioner of Customs by
virtue of the unavailability of a suitable U.S. vessel.
In the facts before us, the foreign-flag vessel in question will
be used solely as a base for treasure hunting operations and will
remain outside the territorial waters of the United States at all
times. We know of no law or regulation enforced by this agency
that would prohibit this proposed usage.
The coastwise laws pertaining to the transportation of
merchandise and passengers (46 U.S.C. 883 and 289, respectively)
prohibit the use of any vessel other than a vessel built in,
owned by citizens of, and documented in the United States to
transport merchandise or passengers between points in the United
States embraced within the coastwise laws.
In interpreting the coastwise laws, Customs has ruled that a
point in United States territorial waters is considered a point
embraced within the coastwise laws. The coastwise laws generally
apply to points in the territorial sea, defined as the belt,
three (3) 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.
It should be noted that, while the restrictions against foreign
vessels in salvage operations and coastwise trade apply only when
the activity occurs in waters under the jurisdiction
of the United States, the provision granting free importation of
merchandise recovered from sunken and abandoned vessels also
applies only to operations conducted within the territorial
waters of the United States. The U.S. Code, in section 1310 (19
U.S.C. 1310) provides that:
Whenever any vessel laden with merchandise,
in whole or in part subject to duty, has been
sunk in any river, harbor, bay, or waters
subject to the jurisdiction of the United States, and within its limits, for the period
of two years and is abandoned by the owner
thereof, any person who may raise such vessel
shall be permitted to bring any merchandise
recovered therefrom into the port nearest to
the place where such vessel was so raised
free from the payment of any duty thereupon,
but under such regulations as the Secretary
of the Treasury may prescribe.
Under the facts before us, all recovery of treasure and artifacts
will take place outside the territorial waters of the United
States. Therefore, any artifacts recovered may not enter the
United States duty-free under this provision. Any questions as
to the classification of such artifacts upon entry into the
United States should be sent to the following address:
Mr. John Durant
Director, Commercial Rulings Division
U.S. Customs Service
1301 Constitution Ave.
Washington, D.C. 20229
The necessary procedure for entry into the United States for
vessels is supplied by sections 431 through 434 of the Tariff Act
of 1930, as amended (19 U.S.C. 1431 et al.). A copy of these
sections has been enclosed for your reference.
HOLDING:
A foreign-flag vessel may be used as a base for treasure hunting
operations outside the territorial waters of the U.S. without
violating the coastwise laws of the United States.
Sincerely,
Arthur P. Schifflin
Chief
Carrier Rulings Branch