VES-10-03-COR:IT:C 113298 GOB
Kevin P. Callahan
Alaska Cargo Transport, Inc.
6700 W. Marginal Way S.W.
Seattle, WA 98106
RE: 46 U.S.C. App. 316(a), 877, 883; 46 U.S.C. 12105; Coastwise
trade; Towing; Guam, American Samoa, Wake Island, Kingman
Reef, Midway, Kwajalein, Marshall Islands, Johnston Island.
Dear Mr. Callahan:
This is in response to your letter dated December 27, 1994.
FACTS:
You ask the following questions.
1. May a U.S.-flag tug with a registry endorsement (the
ENFORCER):
a. tow a U.S.-flag barge with a coastwise endorsement,
which is laden with cargo from a U.S. port to Guam, American
Samoa, Wake, Kwajalein, Kingman Reef, Johnston Island and/or
Midway and, while in route, stop in Hawaii and load additional
cargo?
b. pick up additional fuel in Hawaii?
c. drop its tow to refuel in Hawaii?
2. If one of our coastwise-qualified tugs tows a barge with
a coastwise endorsement from a U.S. port to Hawaii, may the
ENFORCER:
a. tow that barge to Midway, discharge and/or load
cargo in Midway and proceed to Guam for the discharge of cargo?
b. instead of proceeding to Guam, load cargo on the
same barge in Midway and sail to Hawaii for discharge?
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ISSUE:
Do the coastwise laws permit the various activities
described supra?
LAW AND ANALYSIS:
Generally, the coastwise laws prohibit the transportation of
passengers or merchandise between points in the United States
embraced within the coastwise laws in any vessel other than a
vessel built in, documented under the laws of, and owned by
citizens of the United States.
The coastwise laws generally apply to points in the
territorial sea, which is 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.
46 U.S.C. App. 883, the coastwise merchandise statute often
referred to as the "Jones Act", provides in part:
No merchandise...shall be transported by water, or by land
and water, on penalty of forfeiture of the merchandise (or a
monetary amount up to the value thereof as determined by the
Secretary of the Treasury, or the actual cost of the
transportation, whichever is greater, to be recovered from any
consignor, seller, owner, importer, consignee, agent, or
other person or persons so transporting or causing said
merchandise to be transported), between points in the United
States...either directly or via a foreign port, or for any part
of the transportation, in any other vessel 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....
46 U.S.C. App. 316(a) prohibits the use of a non-coastwise-qualified vessel to tow any vessel, other than a vessel in
distress, between ports or places in the United States embraced
within the coastwise laws, either directly or by way of a foreign
port, or to do any part of such towing, or to tow any such vessel
between points in a harbor of the United States.
Pursuant to 46 U.S.C. App. 877, the coastwise laws are
applicable to island territories and possessions of the United
States.
However, 46 U.S.C. 12105(b) states:
A vessel for which a registry endorsement is issued may be
employed in foreign trade or trade with Guam, American
Samoa, Wake, Midway, or Kingman Reef.
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Question #1
a. Pursuant to 46 U.S.C. 12105(b), a U.S.-flag tug with a
registry endorsement such as the ENFORCER may tow a barge between
a U.S. port and Guam, American Samoa, Wake, Kingman Reef, and
Midway. Similarly, pursuant to 46 U.S.C. 12105(b), a U.S.-flag
tug with a registry endorsement may tow a barge between Guam,
American Samoa, Wake, Kingman Reef, and/or Midway.
Kwajalein is an atoll in the Marshall Islands.
Application of United States law to the Republic of the
Marshall Islands is governed by Article VII of the Compact of
Free Association between the United States and the governments of
the Republic of the Marshall Islands and the Federated States of
Micronesia (the "Compact"), as approved in the Compact of Free
Association Act of 1985. Pursuant to section 171 of the Compact:
Except as provided in this Compact or its related
agreements, the application of the laws of the United States
to the Trust Territory of Pacific Islands by virtue of the
Trusteeship Agreement ceases with respect to the Republic of
the Marshall Islands and the Federated States of
Micronesia as of the effective date of this Compact.
The Compact makes no provision for the application of the
coastwise laws, including the coastwise towing statute, to the
Republic of the Marshall Islands. Furthermore, we are aware of
no agreement extending the coastwise laws of the United States to
the parties of the Compact. By Presidential Proclamation, the
President of the United States declared that, as of October 21,
1986, the Republic of the Marshall Islands is self-governing and
no longer subject to the Trusteeship and that the Compact of Free
Association is in effect. Proclamation No. 5564, 51 Fed. Reg.
40399 (1986).
Accordingly, the coastwise laws are not applicable to the
Marshall Islands.
Thus, there is no coastwise law prohibition with
respect to transportation or towing between (a) Kwajalein and (b)
a U.S. port, Guam, American Samoa, Wake, Kingman Reef, Midway or
Johnston Island.
Johnston Island is a coastwise point. Accordingly,
pursuant to 46 U.S.C. 316(a), a U.S.-flag tug with a registry
endorsement may not tow a barge between Johnston Island and
another coastwise point, including a U.S. port.
However, pursuant to 46 U.S.C. 12105(b), such a tug, which
is not coastwise-qualified, may tow a barge between Johnston
Island and the following points: Guam,
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American Samoa, Wake, Kingman Reef, and Midway. Further,
because the coastwise laws are not applicable to Kwajalein, such
a tug, which is not coastwise-qualified, may tow a barge between
Johnston Island and Kwajalein.
With respect to the above scenarios which are permitted
under the coastwise laws, the ENFORCER may stop in Hawaii and
load additional cargo.
b. The ENFORCER may pick up additional fuel in Hawaii.
c. The ENFORCER may drop its tow to refuel in Hawaii.
Question #2
a. Pursuant to 46 U.S.C. 12105(b), the ENFORCER may tow a
barge from Hawaii to Midway, discharge and/or load cargo in
Midway and proceed to Guam for the discharge of the cargo.
b. Instead of proceeding to Guam as in (a), the ENFORCER
may, pursuant to 46 U.S.C. 12105(b), load cargo on the barge in
Midway and sail to Hawaii for discharge.
HOLDINGS:
As detailed supra, certain of the proposed activities are
permissible under the coastwise laws and certain of the proposed
activities are prohibited under the coastwise laws.
Sincerely,
Arthur P. Schifflin
Chief
Carrier Rulings Branch