VES-3-01/10-03-RR:IT:EC 113906 GEV
Jeanne M. Grasso, Esq.
Dyer, Ellis & Joseph
Watergate, Suite 1000
600 New Hampshire Ave., N.W.
Washington, D.C. 20037
RE: Towing; Foreign-flag Tugs; Assistance in Cable-Laying
Operations;
46 U.S.C. App. 316(a)
Dear Ms. Grasso:
This is in response to your letter of April 14, 1997, on
behalf of your client, Cable & Wireless Marine ("CWM"),
requesting a ruling that foreign-flag tugs can be used to assist
in cable-laying operations in U.S. territorial waters and beyond.
Per your request this matter was discussed in a meeting with us
on April 17, 1997. Our ruling is set forth below.
FACTS:
CWM will perform submarine cable installation work on the
Gemini Cable System. The Gemini System consists of two Atlantic
crossings - Gemini South and Gemini North, scheduled to be
installed during the summer of 1997 and winter of 1997/1998,
respectively. The southern link is from Manasquan, New Jersey to
Portheurno, UK and the northern link is from Greenhill, Rhode
Island to Oxwich Bay, UK.
CWM plans to employ two high-performance foreign-flag tugs
to assist its self-propelled cable ship, CABLE VENTURE, while it
is engaged in cable installation. The tugs will provide the
cable ship with additional stability and position holding during
cable-ploughing operations. The tugs and CABLE VENTURE will
rendezvous in New York, where CABLE VENTURE will take on bunkers
and stores, and then steam together to Manasquan or Greenhill to
conduct "sea trials," preferably within the territorial sea. The
trials, which are scheduled to last approximately 24 hours, are
to ensure that the cable-ploughing operation utilizing the two
tugs to provide stability and position holding will be done
safely and effectively. These trials are part of the normal
procedures at the start of a multiple vessel operation.
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After completion of the sea trials, the CABLE VENTURE will
anchor at a 3-point mooring near the end of the pre-layed cable
which may be either inside or outside the territorial sea. The
crew aboard the CABLE VENTURE will splice the pre-layed cable to
the cable aboard ship. The cable-laying operation will then
commence either inside the territorial sea or outside the
territorial sea, depending on the location of the end of the pre-layed cable, and continue across the ocean for approximately 101
nautical miles toward the United Kingdom. At this stage, the
tugs will be released and the CABLE VENTURE will continue to lay
cable unassisted in deep water. The following are the scenarios
on which CWM desires a ruling.
Scenario 1 - "Sea Trials" - The CABLE VENTURE and the two
foreign-flag tugs
will convene in New York, then steam toward Manasquan or
Greenhill for "sea
trials." During the trials, the tugs will engage and
disengage to the bow and stern
of the CABLE VENTURE, or maneuver otherwise, to provide
necessary stability
and position holding for a cable-ploughing operation. The
purpose is to ensure
that the two tugs and the CABLE VENTURE can work together
safely and effec-
tively prior to commencing cable-ploughing operations. The
sea trials may be con-
ducted either in the territorial sea or outside the
territorial sea.
Scenario 2 - Cable-laying - One foreign-flag tug will engage
to the bow of the
CABLE VENTURE in the territorial sea and will remain engaged
throughout the
cable-ploughing operation. The other foreign-flag tug will
follow closely astern,
both within the territorial sea and outside the territorial
sea, and provide stability
and position holding assistance either by pushing or pulling
CABLE VENTURE
into position as necessary. The two tugs may switch
positions, i.e., the bow tug
will become the stern tug and vice versa, during the
operations in the territorial
sea or outside the territorial sea.
Scenario 3 - Cable-laying - One foreign-flag tug will engage
to the bow of the
CABLE VENTURE outside the territorial sea (and will not
enter the territorial
sea) and will remain engaged throughout the cable-ploughing
operation. The
other foreign-flag tug will follow closely astern and
provide stability and position
holding assistance either by pushing or pulling CABLE
VENTURE into position
as necessary. The tugs may switch position, i.e., the bow
tug will become the
stern tug and vice versa, during the operations outside the
territorial sea.
Scenario 4 - Cable-laying - Both foreign-flag tugs will
engage to the CABLE
VENTURE, one on the bow and one on the stern, in the
territorial sea and will
remain engaged throughout the cable-laying operation in the
territorial sea. Once
outside the territorial sea, the stern tug may disengage and
provide stability and
positioning support by pushing or pulling the CABLE VENTURE
into position
as necessary. The tugs may switch positions, i.e., the bow
tug will become the
stern tug and vice versa, during the operations in the
territorial sea and outside
the territorial sea.
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Scenario 5 - Cable-laying - Both foreign-flag tugs will
engage to the CABLE
VENTURE, one to the bow and one to the stern, outside the
territorial sea and
may or may not remain engaged throughout the cable-laying
operation. The tugs
may switch position, i.e., the bow tug will become the stern
tug and vice versa,
during the operations outside the territorial sea.
ISSUE:
Whether the use of foreign-flag tugs in providing assistance
in cable-laying operations as described in the above scenarios is
violative of 46 U.S.C. App. 316(a).
LAW AND ANALYSIS:
Title 46, United States Code Appendix, 316(a) (46 U.S.C.
App. 316(a), the coastwise towing statute) prohibits the use of
any vessel not having in force a certificate of documentation
endorsed for the coastwise or Great Lakes trades (46 U.S.C.
12106, 12107, respectively) to tow any vessel other than a vessel
in distress, from any point or place embraced within the
coastwise laws of the United States to another such port or
place, either directly or by way of a foreign port or place, or
for any part of such towing.
Points embraced within the coastwise laws include all points
within the territorial waters of the United States, including
points within a harbor. The territorial waters of the United
States consist of 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 coastline differ.
With respect to the proposed activities of the subject
foreign-flag tugs, CWM first contends that 46 U.S.C. App.
316(a) is inapplicable inasmuch as the tugs are not "towing" but
"...are merely providing stability and positioning support while
the self-propelled CABLE VENTURE is operating under its own
power." In support of this contention, CWM cites Customs ruling
letter 103692, dated December 28, 1978, wherein it is stated that
"[t]he Customs Service has defined towing as hauling another
vessel through the water by means of a line." (emphasis added)
In regard to the above-cited statement, we submit that a
review of additional Customs rulings interpreting 46 U.S.C. App.
316(a) is probative of the fact that that statement is not
dispositive of Customs position with respect to the entirety of
activities coming within the purview of that statute. To that
end it should be noted that Customs has long-held that
"...assisting a vessel under its own power in docking or
undocking is indeed towing'." (Customs ruling letter 102240,
dated November 4, 1976, discussing Sun Oil Co. v. Dalzell Towing
Co., Inc., 287 U.S. 291, 53 S.Ct. 135) Further in regard to
Customs position that assisting vessels in berthing operations is
"towing" within the meaning of 46 U.S.C. App. 316(a), see the
following: Customs ruling letters 103910, dated August 15, 1979;
104220, dated October 17, 1979; and
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108922, dated May 15, 1987) In addition to "towing", "pushing"
is also a vessel assistance activity falling within the purview
of the coastwise towing statute. (Customs ruling letters 105029,
dated March 5, 1981; and 106912, dated August 8, 1984)
As discussed in the five scenarios set forth in the ruling
request and as evidenced by a diagram submitted by CWM in its
meeting with Customs officials from this office, the assistance
to be provided by the subject tugs includes pushing as well as
pulling by use of a tow line, albeit while the CABLE VENTURE is
operating under its own power. Based on the above rulings, it is
therefore readily apparent that this assistance is within the
purview of 46 U.S.C. App. 316(a) and is therefore subject to
the prohibitions set forth therein when conducted between points
within the territorial sea. With respect to the applicability of
those statutory provisions to the scenarios in question, we have
determined as follows.
Scenario 1 - "Sea Trials" - The "sea trials" described in
Scenario 1 are not violative of the subject statute provided they
are conducted outside the territorial sea. In regard to the
assertion of CWM that these sea trials are not "domestic
commerce" and are therefore not subject to the prohibitions of
the towing statute, we emphasize that Customs interprets the
coastwise towing statute "...strictly in order to reserve any
tows between coastwise points for qualified vessels of the United
States, except for those involving bona fide distress
situations." (Customs ruling letter 111870, supra, citing
Customs ruling letter 109631, dated July 19, 1988) It is
therefore our position that any such sea trials conducted by the
subject tugs within the territorial sea constitute "towing"
within the meaning of 46 U.S.C. App. 316(a) and run contra to
that statute.
Scenario 2 - Cable-laying - The services of both tugs will
commence inside the territorial sea and terminate outside the
territorial sea. Under those circumstances there is no towing
between coastwise points therefore no violation of the statute
will ensue. In the event these two tugs switch positions (i.e.,
the bow tug becomes the stern tug and vice versa), the subject
statute is still not violated provided such switching occurs
outside the territorial sea.
Scenario 3 - Cable-laying - The services of both tugs will
commence and terminate outside the territorial sea as will any
switching of their positions. Consequently, since there is no
towing between coastwise points, no violation of the statute will
ensue.
Scenario 4 - Cable-laying - The services of both tugs will
commence inside the territorial sea and terminate outside the
territorial sea. Under those circumstances there is no towing
between coastwise points therefore no violation of the statute
will ensue. In the event the two tugs switch positions (i.e.,
the bow tug becomes the stern tug and vice versa), the subject
statute is still not violated provided such switching occurs
outside the U.S. territorial sea.
Scenario 5 - Cable-laying - The services of both tugs will
commence and terminate outside the territorial sea as will any
switching of their positions. Consequently, since there is no
towing between coastwise points, no violation of the statute will
ensue.
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HOLDING:
As discussed in the Law and Analysis portion of this ruling,
the use of foreign-flag tugs in providing assistance in cable-laying operations as described in the above scenarios is
violative of 46 U.S.C. App. 316(a) when such assistance
encompasses "towing" between points embraced within the coastwise
laws.
Sincerely,
Jerry Laderberg
Acting Chief
Entry and Carrier Rulings Branch