HQ 0113166 - Coastwise trade; salvage; 46 U.S.C. App 316(d), 19 CFR 4.97 - United States International Trade Commision Rulings

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HQ 113166

July 21, 1994

VES-10-01-CO:R:IT:C 113166 BEW

CATEGORY: CARRIER

Mr. Melvin Garrett
Vice President
Garrett Construction Co.
Post Office Box 9257
Corpus Christi, Texas 78469-9257

RE: Coastwise trade; salvage; 46 U.S.C. App 316(d), 19 CFR 4.97

Dear Mr. Garrett:

This is in response to your letters of July 15 and 19, 1994, which request a ruling regarding the use of a foreign-flag vessel in salvage operations relating to the M/V TEXAS EAGLE.

FACTS:

You state that on June 12, 1994, the M/V TEXAS EAGLE ran upon rock jetties at Port Aransas, Texas. The next day she slid off of the jetties and started sinking due to large holes in her hull. She slowly moved south along the third sand bar in a partially submerged state for approximately 600 yards completely sinking. She is currently located in the surf zone on the second sand bar. You state that you than contacted Aker Gulf Marine concerning the salvage operation.

In your July 19, 1994, letter, you submitted the following chain of events.

June 16, 1994 Contacted Bissio Marine about marine salvage equipment. Rough seas, only work permitted was cleaning loose debris from beach. All preparations have been made for potential oil spill.

June 17 and 18, 1994 Bad Weather no activity June 19, 1994 Mobilized inland barge, and crane to M/V TEXAS EAGLE. Started rigging and divers found that the M/V TEXAS EAGLE was 1\2 full of sand. At this point the 500 ton crane would break the boat in 1/2 if it tried to lift it. Returned to Port. This was the first day of calm seas.
June 19, 1994 Put flashing navigation warning light on mast which was 4 feet out of water.

June 20, 1994 Started fabrication of platform to be set up at salvage site as work platform.

June 21, 1994 Drove and installed work platform at site (beside M/V TEXAS EAGLE) set up a compressor and pumps on platform.

June 22, 1994 Place sling on stern of M/V TEXAS EAGLE with use of divers.

June 23, 1994 Went to site with divers. Weather too rough to work.

June 24, 1994 Took out diver to close engine room doors, but excessive sand would not allow door to be closed.

June 25 - 29, 1994 Bad weather no activity.

June 30, 1994 Started air lifting sand from interior of boat with 2 dive crews, working 24 hours per day.

July 1 and 2, 1994
Jetting sling under mid ship for lifting removing sand from the interior.

July 3, 1994 Beautiful weather, flat seas. Time to lift and Aker Gulf Marine crane superintendent determined that he did not want his rig out in open water due to heavy seas (his opinion only and influenced by Holiday week-end).

July 4, 1994 No activity (no crane)

July 5, 1994 Contacted other large floating crane companys.

1. Ocean salvage - ANSWER: Approximately 3 weeks will have machine passing area and if good weather will pick up. But will not stop and wait for any weather change.

2. Laredo Construction - ANSWER: Equipment out of service 3 to 4 weeks.
3. King Fisher Marine - ANSWER: Does not have required equipment.

4. Leroy Stanley - NO RESPONSE

July 06, 1994 No activity on site. Contacted Glenway and had very positive response.

July 07, 1994 Negotiated contract for mob and demob and 3 consecutive days on site if required.

July 08, 1994 Signed contract with Glenway

July 10, 1994 Called out dive crews to clean out additional sand in preparation of lift next day.

July 11, 1994 TITAN V, came in about 0630 and started preparing for lift. U.S. Coast Guard told us that it would be okay to carry the M/V TEXAS EAGLE in the slings over to the north side of the north jetty to a calm area for safety reasons. Mr. Frederickson with Glenway called me and asked if I could get a waiver in writing from the U.S.C.G. It was his understanding that if he pulled up anchors while the salvage was on the hook he would be violating the Jones Act.

July 12, 1994 TITAN V came in Port due to weather and not having a decision as to its legal ability to work inside the 3-mile limit.

July 13, 1994 Entire day spent trying to find out legal measures and correct interpretation of the Jones Act. TITAN V still at our dock. Contact T $ T Marine - answer: Not interested.

July 15, 1994 Duplicate of the 13th and contacted Bay Construction about possible equipment.

July 16, 1994 Contacted Bissio Marine again and were informed that they did not get message the fist time. They said that they would come to look at it on the 19th or 20th and if they could do it, it would be 2 or 3 weeks before the work could start with weather permitting. Contacted Ocean Salvage and got the same answer about passing by in a couple of weeks but not stoppling if seas were rough. No firm date available. Bay construction looked at site but would require more water depth for tug than is available.

You further state that you presently have a boat out at the site to change the warning light. The longer the M/V TEXAS EAGLE remains at the surf line, she is subject to breaking up and releasing the remaining oil on board. You state that she is a not hazard to the shipping industry, but she is a hazard to small boats and shrimp boats. Finally, you state that the kids on the beach will continue to try to board her by means of using surf boards to paddle out to the wreck location.

ISSUE:

Whether the use of a foreign-flag vessel within the territorial waters of the United States for a salvaging operation is a violation of U.S. coastwise laws.

LAW AND ANALYSIS:

Paragraph (d) of the Act of June 11, 1940, as amended (46 U.S.C. App. 316(d)), provides, in pertinent part, that:

No foreign vessel shall, under penalty of forfeiture, engage in salvaging operations on the Atlantic or Pacific coast of the United States, in any portion of the Great Lakes or their connecting or tributary waters, including any portion of the Saint Lawrence River through which the international boundary line extends, or in territorial waters of the United States on the Gulf of Mexico, except when authorized by a treaty or in accordance with the provisions of [46
U.S.C. App. 725] of this title: Provided, however, That if, on investigation, the
Secretary of the Treasury is satisfied that no suitable vessel wholly owned by a person who is a citizen of the United States and documented under the laws of the United
States or numbered pursuant to section 288 of this title, is available in any particular locality he may authorize the use of a foreign vessel or vessels in salvaging operations in that locality and no penalty shall be incurred for authorized use.

Similarly, Customs Regulations (19 CFR 4.97(a)) prohibit salvage in the territorial waters of the U.S. by vessels other than a vessel of the U.S., a numbered motorboat owned by a citizen, Mexican or Canadian vessels as authorized by treaty, or a vessel which has been granted special permission by the Commissioner of Customs by virtue of the unavailability of a suitable U.S. vessel.
Section 4.97(b), provides that upon receipt of an application, the Commissioner of Customs will cause an investigation to be made immediately to determine whether a suitable vessel of the United States or a suitable numbered motorboat owned by a citizen is available for the operation. If he finds that no such vessel is available and that the facts otherwise warrant favorable action, he will grant the application.

A copy of your correspondence was sent to the U.S. Coast Guard Marine Safety Office, Corpus Christi, Texas, the Maritime Administration, and the Customs office in Corpus Christi, Texas. During the past several days, we have done an extensive investigation of the facts and circumstances surrounding this operation and have determined that there is not a suitable vessel wholly owned by a person who is a citizen of the United States and documented under the laws of the United States or numbered pursuant to section 288 of this title available to do this operation. Accordingly, we are authorizing the use of the TITAN V, a Russian-flag vessel to perform the salvaging operation of the M/V TEXAS EAGLE.

The coastwise laws pertaining to the transportation of merchandise and passengers (46 U.S.C. 883 and 289, respectively) prohibit the use of any vessel other than a vessel built in, owned by citizens of, and documented in the United States to transport merchandise or passengers between points in the United States embraced within the coastwise laws.

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.

Even though the TITAN V is being authorized to perform the salvaging operation, however, she is prohibited from transporting passengers or merchandise from the shore to the wreck site.

HOLDING:

An investigation has been made and it is determined that a suitable vessel of the United States or a suitable numbered motorboat owned by a citizen is not available in the locality for the salvage operation of the M/V TEXAS EAGLE. The TITAN V, a foreign-flag vessel may be used for the salvage operation of the M/V TEXAS EAGLE located within the territorial waters Port Aransas without incurring a penalty for violation fo the coastwise laws.

Sincerely,

Arthur P. Schifflin

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