HQ 113437 - 46 U.S.C. App. 289, 316(a), 883; Coastwise transportation; Towing; M/V RAMBO; Cable laying - United States International Trade Commision Rulings

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HQ 113437

May 10, 1995

VES-3/VES-3-02/VES-10-03-R:IT:C 113437 GOB

CATEGORY: CARRIER

Bill Purvis
Aries Marine Corporation
P.O. Drawer 51789
Lafayette, LA 70505

RE: 46 U.S.C. App. 289, 316(a), 883; Coastwise transportation; Towing; M/V RAMBO; Cable laying

Dear Mr. Purvis:

This is in response to your letter transmitted by facsimile on May 9, 1995. Your letter states in part as follows:

FACTS:

Aries Marine Corporation...is requesting verification for the M/V RAMBO to engage in towing/diving operations. The vessel was formally [sic] a Panamanian Flagged Vessel, which has recently been U.S. Flagged...

Aries Marine has been requested by American Oilfield Divers to submit a bid to engage in the removal of four (4) offshore production platforms, located off the coastal waters of California...

The work to be performe d would be to rendezvous with the derrick barge at one of the above mentioned locations, then the vessel and divers would operate in the removal of the underwater substructures. The substructures and production platforms would be loaded by the derrick barge onto a coastwise endorsed barge to be towed by an American Flagged vessel (unknown at this time).

Aries Marine is requesting a ruling as to whether the M/V RAMBO would be in violation if she towed or assisted the tow of the derrick barge from one location to the next location after the platform has been totally removed and the bottom cleared. The vessel will not be carrying any cargo or passengers for hire.

After completing the above project, Aries Marine is hereby requesting permission to proceed to Alaska for Cable Laying and ROV research operations...Again, the vessel will carry no cargo or passengers for hire.

You stated the following information telephonically. All four points at which the offshore production platforms are located are beyond the three mile territorial sea limit. The M/V RAMBO is the only non-coastwise-qualified vessel that will be involved in this operation. The tugboat which tows the derrick barge to the first point, the derrick barge itself, the "materials barge" which will transport the disengaged materials from each of the four points to a point on the U.S. shore, and the vessel which will tow the materials barge to the point on the U.S. shore are all coastwise-qualified.

ISSUE:

Whether any of the proposed activities are prohibited by the coastwise laws..

LAW AND ANALYSIS:

Generally, the coastwise laws prohibit the transportation of passengers or merchandise between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States.

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. 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.

The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. App. 289 and 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.

Section 4.50(b), Customs Regulations (19 CFR 4.50(b)) states as follows:

A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business.

46 U.S.C. App. 316(a) prohibits the use of a non-coastwise-qualified vessel to tow any vessel, other than a vessel in distress, between ports or places in the United States embraced within the coastwise laws, either directly or by way of a foreign port, or to do any part of such towing, or to tow any such vessel between points in a harbor of the United States.

Section 4(a) of the Outer Continental Shelf Lands Act of 1953, as amended (43 U.S.C. 1333(a); "OCSLA"), provides in part that the laws of the United States are extended to: "the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom...to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction within a state."

Under the foregoing provision, we have ruled that the coastwise laws and other Customs and navigation laws are extended to mobile oil drilling rigs during the period they are secured to or submerged onto the seabed of the outer Continental Shelf ("OCS"). We have applied that principle to drilling platforms, artificial islands, and similar structures, as well as to devices attached to the seabed of the outer Continental Shelf for the purpose of resource exploration operations.

After a consideration of this matter we make the following determinations based on the facts presented.

Inasmuch as all vessels other than the M/V RAMBO are coastwise-qualified, those vessels (other than the M/V RAMBO) may engage in the coastwise transportation of passengers and merchandise, and they may tow vessels between ports or places in the United States.

The M/V RAMBO is not engaged in the transportation of merchandise between coastwise points. Vessel equipment on the M/V RAMBO is not considered merchandise within the meaning of 46 U.S.C. App. 883. The facts indicate that there will be no lading of merchandise aboard the M/V RAMBO during the operation.

The M/V RAMBO is not engaged in the transportation of passengers between coastwise points. The facts indicate that no individuals other than those individuals connected with the operation, ownership, or business of the M/V RAMBO are being transported. The divers are connected with the business of the M/V RAMBO.

The M/V RAMBO may tow the derrick barge from the first point at which the offshore production platform is located to the second, third, and fourth points at which the offshore production platforms are located inasmuch as such towing is not considered to be towing from a port or place embraced within the coastwise laws to other ports or places embraced within the coastwise laws. We make this determination based on the following facts. The tow from the first offshore point to the other three offshore points is one continuous tow. The tow commences at a non-coastwise point because at the time of commencement of the tow, the production platform at the first point has been completely dismantled and thus has ceased to be a coastwise point. Accordingly, the continuous tow is from a non-U.S. point (the location of the dismantled first offshore production platform) to a U.S. point (the fourth offshore production platform), and is not prohibited by 46 U.S.C. App. 316(a).

Your letter also asks for "permission to proceed to Alaska for Cable Laying and ROV research operations." You stated telephonically that "ROV" indicates "underwater remote vehicle." We have previously ruled, including Ruling 112866 dated August 31, 1993 to your corporation, that the laying of cable is not considered coastwise trade. We have also ruled, including Ruling 112992 dated January 12, 1994 to your corporation, that the use of a vessel in oceanographic research is not considered coastwise trade. It would appear from the facts that the vessel will not be engaged in coastwise trade in Alaska, i.e., the transportation of passengers or merchandise between coastwise points.

HOLDING:

As detailed supra, the proposed activities are not prohibited by the coastwise laws.

Sincerely,

Arthur P. Schifflin
Chief

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