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HQ 113405

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April 19, 1995

VES-3/VES-10-01-R:IT:C 113405 GOB

CATEGORY: CARRIER

Tollef K. Olson
President
Ocean Endeavors, Inc.
24 Myrtle Avenue
Simonton Cove
South Portland, ME 04106

RE: 46 U.S.C. 316(d), 883; Salvage; Coastwise transportation

Dear Mr. Olson:

This is in response to your letter dated April 10, 1995.

FACTS:

You state that Ocean Endeavors, Inc. proposes to pull up discontinued submerged cables from the ocean floor in U.S. territorial waters with a Canadian-registered vessel, HULL 108 ("the Canadian vessel"). The cable will be processed into scrap on board the Canadian vessel and then transported to a U.S. port or to a non-U.S. port in Canada or Nova Scotia.

ISSUE:

Whether the proposed activity is prohibited by the coastwise laws.

LAW AND ANALYSIS:

46 U.S.C. App. ?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, documented under the laws of, and owned by citizens of the United States.

Stated otherwise, section 883 prohibits the transportation of merchandise between two coastwise points by a vessel that is not coastwise-qualified.

The coastwise laws generally apply to points in the territorial sea, which is 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.

46 U.S.C. App. ?316(d)

46 U.S.C. App. ?316(d), sometimes referred to as the salvage statute, states:

N o foreign ves sel shall, under p enalty of forfei ture, engage in salvaging operations o n the Atlantic or Pacif ic coast of th e United States, in any portion o f 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 section 725 of this title; Provided, however, That if, on investigation, the Commissioner of Customs 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 such authorized use.

Customs has previously held that in order for a marine operation to constitute "salvage," according to the law developed in this area (See B.V. Bureau Wijsmuller v. United States, 702 F. 2d 333, 337 (1983), in which the history of salvage law is briefly discussed), three elements are necessary. These elements are: "marine peril; service voluntarily rendered, not required by duty or contract; and success in whole or in part, with the service rendered having contributed to the success." Wijsmuller, 702 F. 2d 333, at 338, citing The Sabine, 101 U.S. 384.

The facts of this case indicate that there is no "marine peril." Accordingly, we find that the proposed pulling up of the discontinued submerged cables is not "salvage" within the meaning of 46 U.S.C. App. ?316(d). Accordingly, there is no prohibition of 46 U.S.C. App. ?316(d) with respect to the proposed activity.

The facts indicate that the processed cables, or scrap, will be transported from the Canadian vessel in U.S. territorial waters to a U.S. port or a non-U.S. port.

Pursuant to 46 U.S.C. App. ?883, if the scrap is transported from the Canadian vessel in U.S. waters to a U.S. port, such transportation must be accomplished by a
coastwise-qualified vessel. 46 U.S.C. App. ?883 is not applicable with respect to the transportation of the scrap from the Canadian vessel in U.S. waters to a non-U.S. port.

HOLDINGS:

1. 46 U.S.C. App. ?316(d) is not applicable because the proposed activity does not involve salvage.

2. Pursuant to 46 U.S.C. App. ?883, if the scrap is transported from the Canadian vessel in U.S. waters to a U.S. port, such transportation must be accomplished by a coastwise-qualified vessel. 46 U.S.C. App. ?883 is not applicable with respect to the transportation of the scrap from the Canadian vessel in U.S. waters to a non-U.S. port.

Sincerely,

Arthur P. Schifflin
Chief

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