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December 6, 1994

HQ 113092


VES-3-CO:R:IT:C 113092 LLB

CATEGORY: CARRIER

Mr. Brian R. Hobbs
Seaward Marine Services
3975 University Drive, Suite 400
Fairfax, Virginia 22030

RE: Coastwise trade; Passenger transportation; Merchandise; Towing in United States waters; Divers; 46 U.S.C. App. 289, 316(a), 883

Dear Mr. Hobbs:

Reference is made to your letter of December 2, 1994, which forwards for our consideration and determination the matter of whether foreign-flag vessels may be utilized in the United States to accomplish certain tasks. Our recitation of the facts and our determinations follow.

FACTS:

It is proposed that a Canadian towing vessel operating from a point in Canada on Lake Ontario, tow a Canadian barge to Oswego, New York, where certain diving and cleaning equipment would be placed aboard the barge. The tow would then continue to a work site located in United States waters. The tow would be disengaged at that point and the barge would be anchored to the lake bottom by the use of spud poles. The tow vessel would then proceed to a United States shore point and embark divers who are to be engaged in the removal of zebra mussels from the intake for cooling water at the Fitzpatrick Nuclear Power Plant, Lycoming, New York. The divers would be disembarked onto the anchored barge, from which they would undertake their assigned task of clearing out the mussels. This towing and diver transportation process would be repeated on a daily basis until completion of the cleaning process. The mussels would be placed in a dumpster aboard the barge, and when full the dumpster would be loaded on a vessel referred to as a "US waste hauler", for transportation to a landfill in the United States. Upon completion of the contract work, the equipment would be returned to the United States and the towing vessel and barge would return to Canada. It is stated that nine weeks were spent searching for alternative vessels for the project.

ISSUE:

Whether the proposed use of vessels as outlined in the Facts portion of this ruling may be accomplished without violating the proscriptions imposed under the laws of the United States concerning towing, as well as merchandise and passenger transportation. These provisions are found in 46 U.S.C. 316(a), 883, and 289, respectively.

LAW AND ANALYSIS:

Under section 316(a) of title 46, United States Code Appendix (46 U.S.C. App. 316(a)), only qualified vessels of the United States may tow any vessel, except a vessel in distress, between any two points in the United States.

In the matter under consideration, the initial tow would begin in Canada, proceed to a shore point in the United States where certain materials would be laded aboard the barge, and continue to a point in United States waters where the barge would be anchored. Up to that point no violation would have occurred, because even though the tow stopped at a U.S. point to load materials and then proceeded to a second U.S. point, the vessels remain connected and the tow remained continuous from the Canadian point of origin.

The towing statute is violated when a new tow is initiated by the vessels again linking, this time at the U.S. work site, and moving to Oswego, New York. This violation would be repeated on a daily basis until the last day, at which time the tow would be a continuous tow ending in Canada.

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 trans- portation, 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...

The Act of June 19, 1886, as amended (24 Stat. 81; 46 U.S.C. App. ? 289, sometimes called the coastwise passenger law), provides that:

No foreign vessel shall transport passengers between ports or places in the United States either directly or by way of a foreign port, under a penalty of $200 for each passenger so transported and landed.

For your general information, we have consistently interpreted this prohibition to apply to all vessels except United States-built, owned, and properly documented vessels (see 46 U.S.C. ?? 12106, 12110, 46 U.S.C. App. ? 883, and 19 C.F.R. ? 4.80).

The areas of possible concern over the merchandise transportation statute include the transportation of materials aboard the barge from Oswego to the work site, and the transportation of the zebra mussels from the work site to the shore in the United States. The cleaning and diving equipment, as we understand, would be laded and unladed in the United States at the same point. If this is the case, there is no point to point transportation in violation of the statute. If, however, the materials are unladen at a different point, a violation would be incurred.

As for the mussels, there is a lading at one coastwise point when the mussels are removed from the water and place aboard the barge. The mussels are subsequently unladed from the barge and laded aboard a waste hauling vessel at the work site. We understand that the barge will remain stationary while in possession of and while unlading the mussels and will not provide any part of their transportation. The transportation of the mussels aboard the waste hauling vessel is clearly a movement between two coastwise points for which the services of a qualified vessel are required. The vessel is represented to be a U.S. vessel, but it is not revealed whether the vessel is properly qualified and documented for the coastwise trade.

In regard to the transportation of the divers on a daily basis from the shore to the barge and then back again, this is a violative transportation of passengers under the law. The divers are not considered members of the crew of the towing vessel which is transporting them, and which is hauling them solely that they may join the barge from which they will operate, and be returned to shore at the conclusion of each work day. The services of a
qualified United States-documented vessel must be engaged for this transportation.

HOLDING:

Following a thorough examination of the facts and an analysis of the law and applicable precedents, we have determined that the operation as outlined in this ruling would be in violation of 46 U.S.C. App. 316(a), and 289. Violations of the merchandise transportation statute would occur if the mussels are transported from the work site to the shore in any other than a properly documented United States-flag vessel.

Sincerely,

Arthur P. Schifflin

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