VES-10-03-COR:IT:C 113196 GOB
Kevin P. Callahan
Victory Marine
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, Kwajalein, Marshall Islands, Johnston Island.
Dear Mr. Callahan:
This is in response to your letter dated August 12, 1994.
FACTS:
You ask the following questions.
1. May a U.S.-flag tug with a registry endorsement tow a
U.S.-flag barge with a coastwise endorsement, which is laden with
cargo:
a. from a U.S. port to Hawaii?
b. from a U.S. port to Alaska?
c. from a U.S. port to Guam, American Samoa, Wake,
Kwajalein, Kingman Reef, Johnston Island or between said islands?
2. May a foreign-flag tug tow a U.S.-flag barge with a
coastwise registry from a U.S. port on a voyage to a foreign port:
a. to another U.S. port and pick up cargo?
b. to another U.S. port where the tug will pick up fuel,
lube, and other necessaries?
3. May a foreign-flag tug tow a U.S.-flag barge with a
coastwise registry from a U.S. port to Guam?
ISSUES:
Do the coastwise laws permit the various activities described
supra.
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LAW AND ANALYSIS:
We note initially, and we emphasize, that this ruling applies
only to laws administered by the Customs Service. Certain of the
proposed activities may come within the scope of laws administered
by the U.S. Coast Guard.
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. and b. Pursuant to 46 U.S.C. App. 316(a), a U.S.-flag tug
with a registry endorsement may not tow a barge from a U.S. port
to either Hawaii or Alaska. Such towing may only be accomplished
by a coastwise-qualified vessel.
Because the U.S.-flag barge is coastwise-qualified, it may
transport merchandise between coastwise points. This is true for
all of the scenarios which you present since in all of those
scenarios state the barge has a coastwise endorsement.
c. 1. Pursuant to 46 U.S.C. 12105(b), a U.S.-flag tug with
a registry endorsement may tow a barge between a U.S. port and
Guam, American Samoa, Wake, or Kingman Island. 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, and/or Kingman
Reef.
c. 2. 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, or Johnston Island.
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c. 3. Johnston Island is a coastwise point. Accordingly, as
in a. and b., 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, American Samoa, Wake, and Kingman
Reef. Further, as stated in c. 2., 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.
Question #2
a. A foreign-flag tug may tow a U.S.-flag barge with a
coastwise endorsement on a voyage that commences in a U.S. port,
stops at a second U.S. port to load additional cargo on the barge,
and then proceeds to a foreign port, provided that the tow does not
terminate in the second U.S. port. See Treasury Decision 70-
223(19). A change in the towing vessel at the second U.S. port
would terminate the tow and would result in a violation of 46
U.S.C. App. 316(a).
b. A foreign-flag tug towing a U.S.-flag barge with a
coastwise registry on a voyage to a foreign port may stop in a
second U.S. port to pick up fuel, lube, and other necessaries.
Question #3
Pursuant to 46 U.S.C. App. 316(a) and 877, a foreign-flag tug
may not tow a U.S.-flag barge with a coastwise endorsement from a
U.S. port to Guam. (As stated supra in our response to Question
1.c.1., such a tow may be accomplished by a U.S.-flag vessel with
a registry endorsement.)
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