VES-3/3-15/10-02/10-03-RR:IT:EC 114713 GOB
David Parrot
Titan Maritime Industries, Inc.
P.O. Box 350465
Fort Lauderdale, FL 33335
RE: Coastwise transportation; Towing; Dredging; 46 U.S.C. App. 289, 883, 316(a), 292
Dear Mr. Parrot:
This is in response to your ruling request of June 1, 1999 with respect to the use of your foreign-flag jack-up barge, KARLISSA A (“the vessel”).
FACTS:
You describe the pertinent facts as follows.
The Government has requested that contractors submit tenders for the deepening of the entrance to the port of San Juan, Puerto Rico. The area to be deepened is hard rock and has to be drilled from an elevated stationary platform...
The nature of the service contemplated is as follows. The jack up barge would have on board two drilling machines which would travel the 175 foot length of the barge. The barge would be positioned using mooring winches and the assistance of a U.S. Flag tug boat. Once positioned, the six legs are dropped to the ocean floor and the barge jacks up out of the water to provide the stable platform that is required for drilling operations. Once the holes are drilled and loaded with explosives, the barge jacks down and is shifted out of the way until the explosives placed in the holes in the drilling platform are detonated. The barge is then re-positioned and jacked to drill the next set of holes. The process will be repeated until all the required holes have been drilled, a process which is anticipated to take in excess of six months.
The “Karlissa A” will not be involved in the transport of passengers or cargo. She will perform her only function, that of a drill platform, while jacked out of the water. All personnel, equipment, and consumables will be transported from the shore to the jack up barge by means of U.S. flagged tugs or supply craft. The “Karlissa A” will not be used for dredging or the removal of spoils. All dredging and or transport of spoils will be done with U.S. flagged equipment.
ISSUE:
The application of the coastwise laws to the above-described activity.
LAW and ANALYSIS:
Statutory and Regulatory Framework
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, and which possesses a coastwise endorsement. A vessel that is built in, documented under the laws of, and owned by citizens of the United States, and which obtains a coastwise endorsement from the U.S. Coast Guard, is referred to as "coastwise-qualified."
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 called the “Jones Act”, provides in part that no merchandise shall 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 vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States.
19 CFR 4.80b(a) provides, in pertinent part:
A coastwise transportation of merchandise takes place, within the meaning of the coastwise laws, when merchandise laden at a point embraced within the coastwise laws (“coastwise point”) is unladen at another coastwise point, regardless of the origin or ultimate destination of the merchandise.
19 U.S.C. 1401(c) defines “merchandise,” in pertinent part, as follows: “goods, wares, and chattels of every description...”
The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. App. 289 and 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.
Section 4.50(b), Customs Regulations (19 CFR 4.50(b)) states as follows:
A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business.
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.
46 U.S.C. App. 292 prohibits the use of a non-coastwise-qualified vessel to engage in dredging in the navigable waters of the United States.
Application of the Coastwise Laws and Regulations to the Stated Facts
The following constitutes our analysis of the coastwise laws within the context of the stated facts.
We note initially that you have stated that certain activities will be performed by U.S.-flag vessels. If those activities are within the scope of the various coastwise laws (e.g., the transportation of merchandise or passengers between U.S. points, the towing of vessels between U.S. points, and dredging in U.S. territorial waters), they must be performed by coastwise-qualified vessels, i.e., vessels with coastwise endorsements. Activities within the scope of the coastwise laws may not be performed in accordance with the law by vessels which are U.S.-flag but which do not have a coastwise endorsement.
Puerto Rico is subject to the coastwise laws of the United States. 48 U.S.C. 744 and 46 U.S.C. App. 877.
A vessel located in U.S. territorial waters is a U.S. or coastwise point.
46 U.S.C. App. 289
The facts do not appear to implicate 46 U.S.C. App. 289, the coastwise passenger statute, with respect to the subject vessel. We note that crewmembers are not considered passengers. We further note that, as indicated above, a vessel must be coastwise-qualified in order to transport passengers between U.S. or coastwise points.
46 U.S.C. App. 883
Similarly, the facts do not appear to implicate 46 U.S.C. App. 883, the coastwise merchandise statute, with respect to the subject vessel. Pursuant to the stated facts, it would appear that the two drilling machines on the vessel are equipment of the vessel. Therefore, the two machines are not considered “merchandise” within the meaning of 46 U.S.C. App. 883. We note that the transportation of merchandise (e.g., consumables) between U.S. or coastwise points (e.g., from the shore to the vessel in U.S. territorial waters) must be accomplished by a coastwise-qualified vessel.
46 U.S.C. App. 316(a)
With respect to 46 U.S.C. 316(a), the towing statute, we note that the positioning and repositioning of the vessel between U.S. or coastwise points must be accomplished by a coastwise-qualified vessel because the positioning/repositioning would presumably be accomplished by towing or “pushing” of the vessel. The “pushing” of a vessel is considered to be towing and subject to 46 U.S.C. App. 316(a).
46 U.S.C. App. 292
As stated above, 46 U.S.C. App. 292 prohibits the use of a non-coastwise-qualified vessel to engage in dredging in the navigable waters of the United States.
Your letter states that “[a]ll dredging and or transport of spoils will be done with U.S. flagged vessels.” As we stated above, these activities must be performed by coastwise-qualified vessels, assuming that the dredging occurs in the navigable waters of the U.S. (including the San Juan harbor) and assuming that the transportation is between two U.S. or coastwise points.
We wish to call your attention to a potential dredging issue.
It is our view that the “mere drilling” of the rock is not dredging and therefore is not subject to 46 U.S.C. App. 292.
Note, however, in Ruling 111833 dated November 26, 1991, we held that:
[t]he use of a foreign drilling/blasting barge to participate in a dredging operation by blasting and dislodging the sea bottom from its original sea bottom position to another position is an engagement in dredging and therefore is a violation of 46 U.S.C. App. 292.
We have stated that dredging, for purposes of 46 U.S.C. App. 292, “means the use of a vessel equipped with excavating machinery in digging up or otherwise removing submarine material.” See, for example, Ruling 111188 dated September 14, 1990.
The court in Gar-Con Development v. State of Florida, 468 So. 2d 413, 414-415 (Fla. App. 1 Dist. 1985) stated as follows:
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. The common, plain and ordinary meaning of the term “pile driving” is the driving of a long slender member, usually of timber, steel or reinforced concrete, into the ground to carry a vertical load, to resist a lateral force, or to resist water or other earth pressure. Pile driving has absolutely nothing to do with the excavation or removal of soil or forming a hole or cavity in the ground.
Dredge is defined in The International Maritime Dictionary (De Kerchove, 2nd ed., 1961) as:
A vessel or floating structure equipped with excavating machinery, employed in deepening channels and harbors, and removing submarine obstructions such as shoals and bars.
In Ruling 111188, we stated:
... it is clear that the various uses of the Watermaster, with the exception of cable and pipe-laying, drilling/pile driving and harvesting aquatic vegetation, constitute dredging so as to come within the purview of 46 U.S.C. App. 292 ... [Emphasis added.]
Thus, in Ruling 111188, consistent with the Gar-Con Development case, we stated that drilling and pile driving did not constitute dredging.
Therefore, if the activity proposed is only drilling or pile driving, we do not consider such activity to be dredging and it is not subject to the proscription of 46 U.S.C. App. 292. If there is a de minimis dislodging of the seabed incidental to a drilling or pile driving operation, we would not consider that de minimis dislodging to be substantial enough to constitute dredging.
However, the facts of your request indicate that the proposed activity is more than mere drilling or pile driving, e.g., “Once the holes are drilled and loaded with explosives, the barge jacks down and is shifted out of the way until the explosives placed in the holes in the drilling platform are detonated.” If the proposed activity includes the excavation, digging up, displacing, dislodging, or removal of submarine material by blasting or other means, such activity is dredging and is subject to the proscription of 46 U.S.C. App. 292, i.e., pursuant to that statute it may not be accomplished by a non-coastwise-qualified vessel. This determination is consistent with Ruling 111833.
HOLDING:
The coastwise laws, 46 U.S.C. App. 289, 883, and 316(a), and 292 apply as described above with respect to the activities described above.
Sincerely,
Jerry Laderberg
Chief,
Entry Procedures and Carriers Branch