HQ 0111867 - The applicability of the coastwise laws to the proposed use of a heavy lift foreign vessel in the movement of a production platform which had been salvaged from international waters and towed to the territorial waters of Louisiana. - United States International Trade Commision Rulings

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HQ 111867

September 24, 1991

VES-10-02-CO:R:IT:C 111867 BEW

CATEGORY: CARRIER

Mr. James E. Cloutier
President
Leasco Services
P.O. Box 2402
Oregon City, Louisiana 70380

RE: The applicability of the coastwise laws to the proposed use of a heavy lift foreign vessel in the movement of a production platform which had been salvaged from international waters and towed to the territorial waters of Louisiana.

Dear Mr. Cloutier:

This is in reference to your letter dated September 9, 1991, requesting a ruling concerning the movement of a production platform on a foreign vessel the TAX LIFT 6 (Rotterdam).

FACTS:

You state that on September 1, 1991, the TAX LIFT 6 was used in the international waters to salvage a fixed production platform WEST CAMERON 480 A, that the deck section of the platform was lifted and deposited on a U.S.-flag barge, and towed to your facility. You state that you must off-load the deck section from the U.S. barge and place it at the head of your slip. The U.S. barge is too large to go into the slip, therefore, you ask whether you can use the subject TAX LIFT 6 to lift the deck section from the U.S. barge and move it approximately 180 feet via air and place it at the head of your slip.

You state that you are "only traveling 180' in a private slip and not from any other port or destination." You state that the subject crane barge cannot pivot because the TAX LIFT 6 is not a rotating crane barge.

ISSUE:

1. Whether the transportation of the subject deck section by a foreign crane barge from the U.S.-qualified barge site located at the mouth of the slip to the head of the slip, a distance of approximately 180 feet, is a violation of 46 U.S.C. App. 883.

LAW AND ANALYSIS:

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 platform deck section on a foreign-flag crane barge from the U.S. barge site, located in the territorial waters of the United States, to another point within the territorial waters of the U.S. (the head of your slip) would be prohibited under the provisions of 46 U.S.C. App. 883. Accordingly, the proposed use of the Rotterdam crane-barge in question would be prohibited.

The "Jones Act", 46 U.S.C. App. 883, was enacted in 1920, for the protection of American shipping and shipbuilding. The Act of December 27, 1950 (64 Stat. 1120) provides that the navigation laws (such as sections 883 and 289) may only be waived when deemed necessary in the interest of national defense. Under the 1950 Act, the Customs Service, acting for the Department of the Treasury, is required to waive the navigation laws which it enforces, including the coastwise laws, if requested to do so by the Department of Defense in the interest of national defense. In addition, the Treasury Department is authorized to waive such laws on its initiative or the recommendation of another Government agency to the extent that Treasury determines such action is necessary in the interest of national defense. A waiver of the provisions of the coastwise laws cannot be issued solely for economic reasons.

In the absence of grounds to invoke a waiver in the interest of national defense, the only other method by which a waiver may be granted to transport merchandise or passengers on a non-coastwise qualified vessel between United States ports would be through Congressional action.

We regret that we cannot grant a waiver of the coastwise laws since there is no interest of national defense. The transportation of the merchandise from one coastwise point, to another coastwise point would be in violation of section 883.

HOLDING:

1. The transportation of the subject deck section by a foreign crane barge from the U.S.-qualified barge site located at the mouth of the slip to the head of the slip, a distance of approximately 180 feet, is a violation of 46 U.S.C. App. 883.

Sincerely,

B. James Fritz
Chief

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