VES-3-13 CO:R:P:C 111275 JBW
J. A. Steen
Commander, United States Coast Guard
Alternate Captain of the Port,
Boston, Massachusetts
455 Commercial Street
Boston, MA 02109-1045
RE: Coastwise; Territorial Waters; Navigable Waters; Internal
Waters; Baseline; Dredging; 46 U.S.C. App. 883; 46 U.S.C.
App. 292.
Dear Commander Steen:
This letter is in response to your inquiry of August 17,
1990, in which you seek clarification of our ruling, dated August
8, 1990, addressed to Captain W. H. Boland, Jr.
FACTS:
In Headquarters Ruling 111103, dated August 8, 1990, we held
that the coastwise laws do not prohibit the use of a non-
coastwise-qualified stationary platform or barge used for
construction activities within or beyond territorial waters of
the United States. We further held that if "within territorial
waters," the vessel itself will become a coastwise point, which
necessitates the use of a coastwise-qualified vessel to transport
passengers and merchandise between the platform and another
coastwise point. We defined territorial waters as those waters
consisting of the "territorial sea, defined as the belt, three
nautical miles wide, adjacent to the coast of the United States
and seaward of the territorial sea baseline."
In your letter, you state that the project considered in our
August 8, 1990, ruling will be undertaken landward of the
territorial sea baseline. Thus, you request clarification as to
whether the coastwise laws will apply to this project. You also
request a definition of the term dredging.
ISSUES:
(1) Whether the coastwise laws apply to points located in
waters landward of the territorial sea baseline.
(2) What is dredging for purposes of 46 U.S.C. App. 292
(Supp. III 1985).
LAW AND ANALYSIS:
As explicitly recognized in international law and ratified
by the United States, in most cases, the baseline from which the
breadth of the territorial sea is determined is the low-water
line along the coast. Convention on the Territorial Sea and the
Contiguous Zone, April 29, 1958, art. 3, 15 U.S.T. 1606,
T.I.A.S. 5639, 516 U.N.T.S. 205. International law provides for
alternative determinations of baselines in cases where
geographic phenomena, for example bays, render normal baseline
determinations impractical. See id. arts. 4 & 7. In a case where
a baseline deviates from the coast, the waters on the landward
side of the baseline are considered to be internal waters. Id.
at art. 5(1). In United States law, the breadth of the
territorial sea varies from three to twelve nautical miles
according to the statute implemented. See 33 U.S.C. 151 (1988).
For purposes of the coastwise laws, the Customs Service
recognizes the breadth of the territorial sea as three nautical
miles.
In your letter, you inform us that the baseline established
for the Massachusetts Bay does not follow the coastline, but
rather, extends from Strawberry Point, near Cohasset, to Eastern
Point, near Gloucester. Thus, you state that the proposed
project will be undertaken on the landward side of the
territorial sea baseline; in other words, the work site is
located in internal waters. In our letter to Captain Boland, we
state that the coastwise laws include points within "territorial
waters," which we define to consist of "the territorial sea,
defined as the belt, three nautical miles wide, adjacent to the
coast of the United States and seaward of the territorial sea
baseline." Under normal circumstances, where the baseline is
determined by the coast, the application of the coastwise laws to
the "territorial sea" is not problematic. However, where the
baseline deviates from the coast, we acknowledge that our
definition is confusing, for according to this definition, one
could argue that the coastwise laws do not apply to internal
waters.
The Customs Service has held that the coastwise laws, as
well as the other navigation laws administered by the Customs
Service, are applicable to vessels engaged in activities in the
territorial and navigable waters of the United States, its
territories and possessions. Headquarters Ruling Letter 110994,
May 24, 1990; see also, Headquarters Ruling Letter 108345, dated
May 13, 1986 (applying, inter alia, coastwise laws to movements
within a harbor). Our definition notwithstanding, reference to
the term territorial waters frequently includes both territorial
seas and internal waters. I. Brownlie, Principles of Public
International Law 183, n.2, (3d ed. 1979). This concept is
reflected in the term navigable waters, which, as defined in
Coast Guard regulations, include the territorial sea of the
United States, the internal waters of the United States subject
to tidal influence, and certain other internal waters that are
not subject to tidal influence. 33 C.F.R. 2.05-25 (1989).
Thus, we determine that the coastwise laws apply to navigable
waters, which include waters landward of the territorial sea
baseline.
In our previous letter to your office, we held that if this
project is located within "territorial waters," then the work
platform is subject to the coastwise laws and itself becomes a
coastwise point. Applying the rules stated in the previous
paragraph, reference to "territorial waters" includes operations
performed in internal waters, that is, waters landward of the
territorial sea baseline. We stated that the coastwise laws
nevertheless do not prohibit the use of a non-coastwise-qualified
stationary barge used for construction activities within or
beyond the territorial waters--i.e., navigable waters--of the
United States. Thus, as far as the proposed working operation
of the platform is concerned, the effect of our prior ruling is
unchanged. We note, however, that the location of the work
platform requires that coastwise qualified vessels be used to
transport merchandise and passengers between the platform and
another coastwise point. Likewise, coastwise qualified vessels
must be used to tow the vessel between coastwise points.
Finally, you ask for a definition of dredging. In our
application of 46 U.S.C. App. 292, we have long held that
dredging, for purposes of the statute, means the use of a vessel
equipped with excavating machinery for digging up or otherwise
removing submarine material. Headquarters Ruling Letter 109081,
May 12, 1988.2, 1988. Recently, we have cited with approval in
Headquarters Ruling Letter 111188, dated September 14, 1990, the
following definitions:
Dredging is defined as "excavation" by any means....
The word "excavate" is derived from the latin word
meaning to hollow out. Its common, plain and ordinary
meaning is to make a cavity or hole in, to dig out,
hollow out, to remove soil by digging, scooping out or
other means. The common plain and ordinary meaning of
the word "dredging" is the removal of soil from the
bottom waters by suction or scooping or other means.
Gar-Con Development v. State, 468 So. 2d 413 (Fla. Dist. Ct. App.
1985).
[A dredge is a] vessel or floating structure equipped
with excavating machinery, employed in deepening
channels and harbors, and removing submarine
obstructions such as shoals and bars.
R. de Kerchove, International Maritime Dictionary 241 (2d ed.
1961).
HOLDING:
The coastwise laws generally apply to points in 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 the coastline differ. The location
of the proposed work platform is landward of the territorial sea
baseline and is consequently subject to the coastwise laws. The
coastwise laws do not prohibit the use of a non-coastwise-
qualified stationary barge used for construction activities
within or beyond the territorial sea or internal waters of the
United States. However, the location of the work platform
requires that coastwise qualified vessels be used to transport
merchandise and passengers between the platform and another
coastwise point. Likewise, coastwise qualified vessels must be
used to tow the vessel between coastwise points.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch