VES-3-15 CO:R:P:C 111978
Mr. Heung Y. Kim
Kim Marine Documentation, Inc.
720 Olive Way
Seattle, Washington 98101
RE: Applicability of the coastwise laws to the use of a foreign-
flag submersible vessel, the ARCTIC TARSUIT, to launch
concrete pontoons which will be tow to and used in a
floating bridge site located in territorial waters.
Dear Mr. Kim:
Reference is made to your letter of November 5, 1991, in
which you request a ruling on the use of the ARCTIC TARSUIT, a
Canadian flag, submersible deck cargo barge, to launch 20
concrete pontoons in the territorial waters of the State of
Washington.
FACTS:
You state that the ARCTIC TARSUIT is a barge of mild steel,
an all-welded construction with a ship shaped bow and raised
forecastle. The barge is fitted with a complete remote control
ballasting and piping system which allows it to be submerged to a
depth of 6.7 meter above the main deck. You state that the
submersible barge will be used to carry 20 concrete pontoons,
measuring approximately 350' long and 60' wide, from a dock to a
depth of water sufficient to float the pontoons. The pontoons
will be freed from the barge, and towed to Lake Washington, where
they will become a part of a floating bridge.
ISSUE:
Does the transportation of pontoons from a coastwise point
to an offshore launch site located within the territorial waters
of the State of Washington, by a foreign-flag submersible launch
barge ARCTIC TARSUIT, and the subsequent movement of the pontoons
to a floating bridge site located in the territorial waters of
the State of Washington, violate the coastwise laws?
LAW AND ANALYSIS:
Generally, the coastwise laws (e.g., 46 U.S.C. App. 289 and
883, and 46 U.S.C. 12106 and 12110) prohibit the transportation
of merchandise or passengers between points in the United States
embraced within the coastwise laws 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.
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 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 ... 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 under the laws
of the United States and owned by persons who
are citizens of the United States ....
"Merchandise" is defined in section 1401(c) of title 19,
United States Code, to include goods, wares, and chattels of
every description, and includes fish, fish products, and fish
packaging materials that are assembled into packages containing
fish. Section 883 specifically provides that, for purposes of
its provisions, "merchandise" includes valueless material (Pub.L.
100-329; 102 Stat. 588). The transportation of valueless
material, whether or not it has commercial value, from a point or
place in the United States or point or place on the high seas
within the Exclusive Economic Zone (EEZ) as defined in the
Presidential Proclamation of March 10, 1983, to another point or
place in the United States or a point or place on the high seas
within that EEZ would also be prohibited under the provisions of
section 883.
In interpreting the coastwise laws, Customs has ruled that a
point in United States territorial waters is considered a point
embraced within the coastwise laws. The coastwise laws generally
apply to points in the territorial sea, defined as the belt,
three (3) 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 transportation of the subject pontoons on a foreign-
flag launch barge from a site, located in the territorial waters
of the United States, to another point within the territorial
waters of the U.S. (the launch site) would be prohibited under
the provisions of 46 U.S.C. App. 883. Accordingly, the proposed
use of the ARCTIC TARSUIT, a Canadian-flag barge, would be
prohibited under section 883.
HOLDING:
The use of a foreign flag launch barge to transport pontoons
from a point in the territorial waters of the State of Washington
to an offshore launch site, located in the territorial waters of
the State of Washington would be prohibited under the provisions
of 46 U.S.C. App. 883.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch