VES-3-19-CO:R:IT:C 111684 KVS
Mr. Laney Choest
Edison Choest Offshore
North American Shipbuilding
P.O. Box 309
Galliano, LA 70354
Re: Use of foreign-flag fixed crane barge within U.S. waters
Dear Mr. Choest:
This is in response to your recent request for a ruling
regarding the use of a foreign-flag fixed crane barge within U.S.
waters. Our findings are set forth below.
FACTS:
Your letter states that North American Shipbuilding, a
facility of Edison Choest Offshore, wishes to utilize a foreign-
flag fixed crane barge (the Smit Taklift 6) together with three
American-flag barge cranes to launch the NATHANIEL B. PALMER
("vessel"), a newly-constructed vessel.
We are informed that the NATHANIEL B. PALMER currently rests
upside down on a foundation located 12 feet from the water's
edge. The four cranes will be positioned in a straight line
alongside the vessel, with the foreign-flag barge placed at the
far left end. The four lift barges, attached to the hull of the
NATHANIEL B. PALMER by slings connected to the pad-eyes welded to
the side of the vessel.
The barges will lift the hull of the NATHANIEL B. PALMER
approximately three feet above its current foundation and pivot
outward in unison, bringing the vessel perpendicular to the
shoreline before lowering it into the water. We are informed
that, during this operation, the propulsion systems on the
foreign-flag crane barge will be secured and not in use, and that
all propulsion necessary for movement will be supplied by U.S.
harbor tugs.
After the vessel is lowered into the water, the slings will
be lowered until approximately 10-12 feet of slack remains in the
lift line. One side of the slings will be removed and the hull
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lifted on the remaining slings of the other side in a manner
that will "flip" the hull so that the vessel will be righted in
the water. After the hull is "flipped," the crane barge slings
will be removed and the foreign-flag crane barge will no longer
be used. U.S. harbor tugs will then position the NATHANIEL B.
PALMER parallel to the shoreline.
ISSUE:
Whether a 90 degree rotation of a non-coastwise-qualified
fixed crane barge upon an axis by U.S.-flag harbor tugs
constitutes a coastwise transportation in violation of 46 U.S.C.
App. 883.
LAW AND ANALYSIS:
Title 46, United States Code Appendix, section 883 (46
U.S.C. App. 883), 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 and
documented under the laws of the United States and owned by
persons who are citizens of the United States.
Title 19, United States Code, section 1401(c) defines the
term "merchandise" as "goods, wares, and chattels of every
description, and includes merchandise the importation of which is
prohibited." Moreover, under a recent amendment to 46 U.S.C.
App. 883, the term merchandise encompasses even "valueless
material."
In interpreting section 883, Customs has ruled that a points
in the United States embraced within the coastwise laws include
points in the territorial sea (defined as the belt, three
nautical miles wide, seaward of the territorial sea baseline),
and points located in internal waters (those waters landward of
the territorial sea baseline, in cases where the baseline and the
coastline differ).
Section 4.80b(a), Customs Regulations (19 CFR 4.80b(a)
provides, in part, that:
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 of the
merchandise.
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Turning to the proposed usage, we understand that the
foreign-flag fixed crane barge will be used as one of four crane
barges to lift the NATHANIEL B. PALMER from her present position,
swing the vessel out and over a foundation, and deposit the
vessel in the intercoastal waterway.
Therefore, if this proposed activity constitutes a lading of
merchandise at one coastwise point and a discharge at another,
with the foreign-flag barge providing the necessary
transportation between those points, the coastwise prohibition of
46 U.S.C. App. would prohibit the use of the foreign-flag barge
in assisting the movement of the hull.
However, in this case the barge, which holds the fourth
crane in line, will utilize no propulsion equipment. Although the
barge will not remain completely still, the only movement
proposed is the swinging of the bow by U.S.-flag harbor tugs so
as to rotate the barge approximately 90 degrees upon an axis.
At no time will the barge be used to advance the NATHANIEL B.
PALMER in its progress through the water, but will merely rotate
approximately 90 degrees upon an axis.
It follows, then, that at least part of the non-coastwise-
qualified barge will be over the precise spot, after the use of
the crane, as it was before it swung on its axis. We do not
consider such a movement to be a point to point transportation of
the NATHANIEL B. PALMER by the barge since, as a practical
matter, its only movement is of a swinging nature and the entire
vessel does not move from one coastwise point to another
coastwise point.
HOLDING:
The 90 degree rotation of a non-coastwise-qualified fixed
crane barge upon an axis by U.S.-flag harbor tugs does not
constitute a coastwise transportation in violation of 46 U.S.C.
App. 883.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch
cc: District Director, New Orleans
Smit International