HQ 113092
VES-3-CO:R:IT:C 113092 LLB
Mr. Brian R. Hobbs
Seaward Marine Services
3975 University Drive, Suite 400
Fairfax, Virginia 22030
RE: Coastwise trade; Passenger transportation; Merchandise;
Towing in United States waters; Divers; 46 U.S.C. App. 289,
316(a), 883
Dear Mr. Hobbs:
Reference is made to your letter of December 2, 1994, which
forwards for our consideration and determination the matter of
whether foreign-flag vessels may be utilized in the United States
to accomplish certain tasks. Our recitation of the facts and our
determinations follow.
FACTS:
It is proposed that a Canadian towing vessel operating from
a point in Canada on Lake Ontario, tow a Canadian barge to
Oswego, New York, where certain diving and cleaning equipment
would be placed aboard the barge. The tow would then continue to
a work site located in United States waters. The tow would be
disengaged at that point and the barge would be anchored to the
lake bottom by the use of spud poles. The tow vessel would then
proceed to a United States shore point and embark divers who are
to be engaged in the removal of zebra mussels from the intake for
cooling water at the Fitzpatrick Nuclear Power Plant, Lycoming,
New York. The divers would be disembarked onto the anchored
barge, from which they would undertake their assigned task of
clearing out the mussels. This towing and diver transportation
process would be repeated on a daily basis until completion of
the cleaning process. The mussels would be placed in a dumpster
aboard the barge, and when full the dumpster would be loaded on a
vessel referred to as a "US waste hauler", for transportation to
a landfill in the United States. Upon completion of the contract
work, the equipment would be returned to the United States and
the towing vessel and barge would return to Canada. It is stated
that nine weeks were spent searching for alternative vessels for
the project.
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ISSUE:
Whether the proposed use of vessels as outlined in the Facts
portion of this ruling may be accomplished without violating the
proscriptions imposed under the laws of the United States
concerning towing, as well as merchandise and passenger
transportation. These provisions are found in 46 U.S.C. 316(a),
883, and 289, respectively.
LAW AND ANALYSIS:
Under section 316(a) of title 46, United States Code
Appendix (46 U.S.C. App. 316(a)), only qualified vessels of the
United States may tow any vessel, except a vessel in distress,
between any two points in the United States.
In the matter under consideration, the initial tow would
begin in Canada, proceed to a shore point in the United States
where certain materials would be laded aboard the barge, and
continue to a point in United States waters where the barge would
be anchored. Up to that point no violation would have occurred,
because even though the tow stopped at a U.S. point to load
materials and then proceeded to a second U.S. point, the vessels
remain connected and the tow remained continuous from the
Canadian point of origin.
The towing statute is violated when a new tow is initiated
by the vessels again linking, this time at the U.S. work site,
and moving to Oswego, New York. This violation would be repeated
on a daily basis until the last day, at which time the tow would
be a continuous tow ending in Canada.
The coastwise law pertaining to the transportation of
merchandise, section 27 of the Act of June 5, 1920, as amended
(41 Stat. 999; 46 U.S.C. App. 883, often called the Jones Act),
provides that:
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 trans-
portation, 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...embraced within the coastwise laws, 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
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under the laws of the United States and owned
by persons who are citizens of the United States...
The Act of June 19, 1886, as amended (24 Stat. 81; 46 U.S.C.
App. 289, sometimes called the coastwise passenger law),
provides that:
No foreign vessel shall transport passengers
between ports or places in the United States
either directly or by way of a foreign port,
under a penalty of $200 for each passenger so
transported and landed.
For your general information, we have consistently
interpreted this prohibition to apply to all vessels except
United States-built, owned, and properly documented vessels (see
46 U.S.C. 12106, 12110, 46 U.S.C. App. 883, and 19 C.F.R.
4.80).
The areas of possible concern over the merchandise
transportation statute include the transportation of materials
aboard the barge from Oswego to the work site, and the
transportation of the zebra mussels from the work site to the
shore in the United States. The cleaning and diving equipment,
as we understand, would be laded and unladed in the United States
at the same point. If this is the case, there is no point to
point transportation in violation of the statute. If, however,
the materials are unladen at a different point, a violation would
be incurred.
As for the mussels, there is a lading at one coastwise point
when the mussels are removed from the water and place aboard the
barge. The mussels are subsequently unladed from the barge and
laded aboard a waste hauling vessel at the work site. We
understand that the barge will remain stationary while in
possession of and while unlading the mussels and will not provide
any part of their transportation. The transportation of the
mussels aboard the waste hauling vessel is clearly a movement
between two coastwise points for which the services of a
qualified vessel are required. The vessel is represented to be a
U.S. vessel, but it is not revealed whether the vessel is
properly qualified and documented for the coastwise trade.
In regard to the transportation of the divers on a daily
basis from the shore to the barge and then back again, this is a
violative transportation of passengers under the law. The divers
are not considered members of the crew of the towing vessel which
is transporting them, and which is hauling them solely that they
may join the barge from which they will operate, and be returned
to shore at the conclusion of each work day. The services of a
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qualified United States-documented vessel must be engaged for
this transportation.
HOLDING:
Following a thorough examination of the facts and an
analysis of the law and applicable precedents, we have determined
that the operation as outlined in this ruling would be in
violation of 46 U.S.C. App. 316(a), and 289. Violations of the
merchandise transportation statute would occur if the mussels are
transported from the work site to the shore in any other than a
properly documented United States-flag vessel.
Sincerely,
Arthur P. Schifflin
Chief
Carrier Rulings Branch