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HQ 111870

September 27, 1991

VES-10-13-CO:R:IT:C 111870 RAH

CATEGORY: CARRIER

Mr. David Parrot, President
Titan Maritime Industries, Inc.
P.O. Box 350463
Fort Lauderdale, FL 33316

RE: Towing; 46 U.S.C. App. 316(a)

Dear Mr. Parrot:

This is in response to your letter of September 4, 1991, in which you seek clarification of the towing statute.

FACTS:

In your letter you state that you have a contract to remove fuel oil from a sunken vessel in the Gulf of Mexico. You ask whether a foreign tug may tow a U.S. barge from U.S. territorial waters to a specific job site in international waters, and then tow the same barge back to a U.S. port at the conclusion of the job. Pursuant to a telephone conversation on September 19, 1991, between Ms. Hollaway of my staff and Mr. Dick Fairbanks of your office, we confirmed that the foreign tug will pick up the U.S. barge at the port of Fouchon, Louisiana, and tow her to the job site in international waters. At that point, the tug will disengage from the barge. The barge will jack-up to perform the salvage operation in question. Once the job is completed (it will take approximately 30 days), the same or a different tug will return to the barge to tow her back to the United States.

ISSUE:

Whether pursuant to 46 U.S.C. App. 316(a), a foreign tug may tow a U.S. barge from a U.S port to the high seas, disengage from the barge, and return approximately 30 days later to tow the barge back to a U.S. port.

LAW AND ANALYSIS:

Section 4370 of the Revised Statutes, as amended (R.S. 4370; 46 U.S.C. App. 316(a), the coastwise towing statute), prohibits the towing of any vessel, other than a vessel in distress, by a vessel not documented under the United States flag to engage in
the coastwise or Great Lakes trade between ports or places in the United States embraced within the coastwise laws, either directly or by way of a foreign port or place, or for any part of such towing, or such towing between points in a harbor of the United States. The penalties for violation of this prohibition are a fine of from $250 to $1,000 against the owner and master of the towing vessel and a further penalty against the towing vessel of $50 per ton of the towed vessel.

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 coastline differ.

It is important to keep in mind that the restrictions imposed by section 316(a) extend only to tows between coastwise points. A non-coastwise-qualified towing vessel is free to tow any vessel from a point beyond the three mile territorial sea boundary to a coastwise point, or from a coastwise point to a non-coastwise point. We interpret section 316(a) strictly in order to reserve any tows between coastwise points for qualified vessels of the United States, except for those involving bona fide distress situations. Customs Ruling Letter 109631 LLB (7- 19-88). It is Custom's position that the manifest object of the statute is to prohibit foreign tugs from towing American vessels for any part of an overall towing operation in domestic commerce. Customs Letter 105149 DHR (5-13-81).

In the instant case, the tow is not an overall tow between coastwise points. The fact that the tug will disengage from the barge for approximately 30 days before returning to tow her back to the United States, breaks the continuity of the tow between the two coastwise points. In effect, there are two separate towing operations: (1) from a U.S. port to the high seas; and (2) from the high seas to a U.S. port.

HOLDING:

A foreign tug may tow a U.S. barge from a point within a U.S port to the high seas, disengage from the barge, and return approximately 30 days later to tow the barge back to a U.S. port, without violating 46 U.S.C. App. 316(a).

Sincerely,

B. James Fritz
Chief

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