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