HQ 0111978 - 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. - United States International Trade Commision Rulings

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HQ 111978

May 6, 1992

VES-3-15 CO:R:P:C 111978

CATEGORY: CARRIER

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

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