HQ 0113124 - EDMUND FITZGERALD Exploration Dive Project; Coastwise Trade; Towing; Great Lakes; Tug; Submersible; Shuttle Boat; 46 U.S.C. App. 289, 883, 316(a) - United States International Trade Commision Rulings

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HQ 113124

June 9, 1994

VES-3-06/10-03-CO:R:IT:C 113124 GEV

CATEGORY: CARRIER

Frederick J. Shannon
1080 W. Stanley Road
Mt. Morris, Michigan 48458

RE: EDMUND FITZGERALD Exploration Dive Project; Coastwise Trade; Towing; Great Lakes; Tug; Submersible; Shuttle Boat; 46 U.S.C. App. 289, 883, 316(a)

Dear Mr. Shannon:

This is in response to your letter of June 2, 1994, requesting a ruling regarding the use of a Canadian-flag tug to transport a research submersible to be used to dive the shipwreck site of the EDMUND FITZGERALD in Lake Superior. The ruling you request is set forth below.

FACTS:

A privately funded exploration dive project has been organized for the express purpose of obtaining video tape documentation of the shipwreck site of the EDMUND FITZGERALD, lost in Lake Superior in 1975. This project, due to take place during the period of June 29 - July 2, 1994, is for the benefit of various historical groups and organizations throughout the Great Lakes area that wish to further the historical importance of Great Lakes submerged culture through the exploration of shipwreck sites.

A research submersible from Delta Oceanographics of California ("Delta") has been procured for the dive. To adequately support this diving operation, a small tug or barge with certain deck accommodations and pilothouse space is needed to facilitate the delivery of the sub to, and its return from, the dive site. In checking the available tugs in the Soo, Ontario, Canada and Northern Michigan areas, only one tug which was capable of performing the task was available for the desired time period. The tug is from Purvis Marine, Ltd., of Soo, Ontario, Canada.

The dive project is to proceed as follows. The tug will sail directly across the St. Mary's River from its dock at Soo, Ontario to a Soo, Michigan dock where the sub will be waiting on a flatbed truck. At that time a portable crane operator from Sault Ste. Marie, Michigan will load the sub onto the tug. If the sub is to be towed, it will be lowered into the water and secured in a saddle for tow to the site.

Upon loading and securement of the sub, the following people will embark the tug prior to its getting under way: three Delta sub technicians; a Delta supervisor; three video technicians; two members of a news team; the project director; and three observers from various historical and museum associations. It appears from the projected schedule submitted that most, if not all, of the aforementioned individuals will at some time during the course of the project be passengers in the sub on its dives. Once under way, the tug will sail upbound through the Soo Locks and into Whitefish Bay along the approved upbound shipping channel which crosses the U.S.-Canada international boundary at several points. The tug will, for the most part, keep to the north of the boundary until reaching the wreck site, 17 miles north from Whitefish Point in Lake Superior.

Once the tug arrives at the wreck site, the sub will be lowered into the water by a crane onboard the tug to survey not only the wreckage itself but also an area within a 1,000 meter circle of the wreckage. Information furnished by the U.S. Coast Guard indicates that the wreck lies on and to the Canadian side of the international boundary. However, since the region is, for the most part, unexplored, no details of the wreck site are available. Consequently, one very important aspect of this project is to survey the site for better mapping. To that end there will be four one-hour dives each day with the sub tentatively scheduled to dive on the international boundary and surface at the same location.

During the three days exploring the site, the tug will not come back into any United States or Canadian port but will anchor off site either near Coppermine Point (Canada) or Whitefish Point (U.S.). A shuttle boat from the harbor of refuge at Paradise, Michigan will be used to transport air tanks and logistics to the tug and will be available to give assistance in the event a life- threatening situation arises. In addition, any United States citizen wishing to depart the tug will be taken by the shuttle boat to the Whitefish Point Harbor.

At the conclusion of the dive schedule, the tug will return by the approved downbound shipping course to the same Soo, Michigan dock where the sub was loaded and the passengers embarked. The sub will then be unloaded from the tug onto a truck for its return trip to the West Coast and the passengers will disembark.

ISSUES:

1. Whether the use of a Canadian-flag tug to transport a research sub from Soo, Michigan to a location in Lake Superior on the U.S.-Canada international boundary where it is off-loaded to explore a shipwreck, and then reloaded for transport back to its original place of loading constitutes an engagement in the coastwise trade in violation of 46 U.S.C. App. 883.

2. Whether the use of a Canadian-flag tug to transport the technicians of the above-referenced sub, their supervisor, members of the news media, the project director, and observers from various historical and museum associations from their point of embarkation at Soo, Michigan to the shipwreck site described above where they will temporarily leave the tug in the sub, and later reboard the tug to return to their point of embarkation constitutes an engagement in the coastwise trade in violation of 46 U.S.C. App. 289.

3. Whether the use of a Canadian-flag tug to tow a research sub from Soo, Michigan to the shipwreck site described above where the tow is dropped and later picked up for the return of the sub to the location at which the tow began constitutes a violation of 46 U.S.C. App. 316(a).

LAW AND ANALYSIS:

Title 46, United States Code Appendix, 883 (46 U.S.C. App. 883), the coastwise merchandise statute 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 (i.e., a coastwise-qualified vessel). Pursuant to title 19, United States Code, 1401(c) (19 U.S.C. 1401(c)) the word "merchandise" means goods, wares and chattels of every description and includes merchandise the importation of which is prohibited.

Title 46, United States Code Appendix, 289 (46 U.S.C. App. 289, the passenger coastwise statute), prohibits the transportation of passengers between points embraced within the coastwise laws of the United States, either directly or by way of a foreign port, in a non-coastwise-qualified vessel. Pursuant to 4.50(b), Customs Regulations (19 CFR 4.50(b)) a "passenger" for purposes of 289 is defined as "any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership or business."

In its administration of 46 U.S.C. App. 289, the Customs Service has ruled that the carriage of passengers entirely within territorial waters, even though the passengers disembark at their point of embarkation and the vessel touches no other coastwise point, is considered coastwise trade subject to the coastwise laws. However, the transportation of passengers beyond U.S. territorial waters and back to their point of embarkation, assuming the passengers do not go ashore, even temporarily, at another United States point, often called a "voyage to nowhere", is not considered coastwise trade (29 O.A.G. 318 (1912)).

Title 46, United States Code Appendix, 316(a) (46 U.S.C. App. 316(a), the coastwise towing statute) prohibits the use of a non-coastwise-qualified vessel to tow any vessel other than a vessel in distress, from any point or place embraced within the coastwise laws of the United States to another such port or place, either directly or via a foreign port or place, or for any part of such towing.

Points embraced within the coastwise laws include all points within the territorial waters of the United States, including points within a harbor. The territorial waters of the United States consist of the territorial sea, defined as the belt, 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 coastline differ. It should be noted that although Presidential Proclamation 5928 of December 27, 1988, extended the U.S. territorial sea to 12 miles, this extension is only for international purposes. Thus, Customs enforcement activities are not altered as a result of the proclamation. We further note that as they pertain to the Great Lakes, the territorial waters of the United States include those waters adjacent to the coast of the United States extending to the U.S.-Canada international boundary. (See Customs rulings 110056, dated February 13, 1989 and 112023, dated December 23, 1991)

In regard to the first issue under consideration, the Canadian-flag tug will incur no violation of 46 U.S.C. App. 883 provided that once the sub is loaded at Soo, Michigan the off- loading and reloading of the sub at the shipwreck site occurs on the Canadian side of the U.S.-Canada international boundary, and upon the termination of the dives the sub is unloaded at the same dock at Soo, Michigan where it was placed onboard the tug. Under this scenario, the sub cannot be said to be transported, either in whole or in part, between two coastwise points by a non-coastwise- qualified vessel.

The above rationale is also applicable to the second issue in question. Consequently, no violation of 46 U.S.C. App. 289 will occur provided the technicians, their supervisor, the news media, project director and various other observers (all of whom are considered passengers on the tug pursuant to 19 CFR 4.50(b), cited above) embark and disembark (defined in 19 CFR 4.80a(a)(4) as boarding a vessel for the duration of a voyage, and leaving at the conclusion of the voyage, respectively) at the same point in Soo, Michigan and the tug proceeds to Canadian waters at some time during the voyage. Such transportation would constitute a "voyage-to-nowhere" as discussed above. In addition, any passenger temporarily leaving the tug to dive in the sub must do so and reboard the tug in Canadian waters.

In regard to the third issue in question, the Canadian-flag tug will incur no violation of 46 U.S.C. App. 316(a) provided the sub is towed from Soo, Michigan to the shipwreck site, the tow is both dropped and picked up on the Canadian side of the U.S.- Canada international boundary, and the sub is towed back to the same point at which the tow began.

Parenthetically, we note that the provisions of 46 U.S.C. App. 289 and 883 discussed above are applicable to both the shuttle boat and the sub used in this exploration project.

HOLDINGS:

1. The use of a Canadian-flag tug to transport a research sub from Soo, Michigan to a location in Lake Superior on the U.S.- Canada international boundary where it is off-loaded to explore a shipwreck and then reloaded for transport back to its original place of loading does not constitute an engagement in the coastwise trade in violation of 46 U.S.C. App. 883 provided that such off- loading and reloading occurs on the Canadian side of the U.S.- Canada international boundary and upon termination of the project the sub is off-loaded at the same dock in Soo, Michigan where it was loaded.

2. The use of a Canadian-flag tug to transport the technicians of the above-referenced research sub, their supervisor, members of the news media, the project director, and observers from various historical and museum associations from their point of embarkation at Soo, Michigan to the shipwreck site described above where they will temporarily leave the tug in the sub and later reboard the tug to return to their point of embarkation does not constitute an engagement in the coastwise trade in violation of 46 U.S.C. App. 289 provided they embark and disembark at the same point and the tug proceeds to Canadian waters at some time during the course of the voyage. Further- more, any passenger temporarily leaving the tug to dive in the sub must do so and reboard in Canadian waters.

3. The use of a Canadian-flag tug to tow a research sub from Soo, Michigan to the shipwreck site described above where the tow is dropped and later picked up for the return of the sub to the location at which the tow began does not constitute a violation of 46 U.S.C. App. 316(a) provided the tow is both dropped and picked up on the Canadian side of the U.S.-Canada international boundary.

Sincerely,

Arthur P. Schifflin

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