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HQ 115041

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May 15, 2000

VES-10-03-RR:IT:EC 115041 GEV

CATEGORY: CARRIER

Dennis L. Bryant, Esq.
Haight Gardner Holland & Knight
2100 Pennsylvania Avenue, N.W.
Suite 400
Washington, D.C. 20037-3202

RE: Towing; Foreign-flag Tug; Part of Tow; 46 U.S.C. App.

Dear Mr. Bryant:

This is in response to your letter dated May 9, 2000, requesting a ruling regarding the use of a Canadian-flag tug on the St. Lawrence Seaway. Our ruling on this matter is set forth below.

FACTS:

A U.S.-flag, coastwise-qualified barge is transiting from New Orleans, Louisiana, to Escanaba, Michigan, via Montreal, Canada. From New Orleans to Montreal, the barge will be solely towed by a U.S.-flag, coastwise-qualified tug. In Montreal, the barge will load a Canadian-origin cargo for delivery to Escanaba. From Montreal to Escanaba, the barge will be towed variously by either the U.S. tug or a Canadian tug. The crew of the Canadian tug is more familiar with the waters of the St. Lawrence Seaway than is the crew of the U.S. tug. Additionally, the Canadian tug is smaller and more maneuverable, which will facilitate transit of the various locks and other narrow waterways of the St. Lawrence Seaway.

ISSUE:

Whether the use of a Canadian-flag tug for part of a tow of a coastwise-qualified barge between New Orleans, Louisiana, and Escanaba, Michigan, via Montreal, Canada, is violative of 46 U.S.C. App. § 316(a).

LAW AND ANALYSIS:

Title 46, United States Code Appendix, § 316(a) (46 U.S.C. App. § 316(a), the coastwise towing statute) prohibits the use of any vessel not having in force a certificate of documentation endorsed for the coastwise trade (46 U.S.C. § 12106) 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 by way of 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, three 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.

With respect to the scenario described above, the barge in question will be towed between two coastwise ports (New Orleans and Escanaba) via a foreign port (Montreal) where it will be loaded. The Canadian-flag tug in question would be used for part of this towing (i.e., between Montreal and Escanaba). Such use is expressly prohibited by the coastwise towing statute cited above. The mere loading of Canadian-origin cargo on the barge in Montreal destined to the United States does not render null and void the provisions of 46 U.S.C. App. § 316(a).

HOLDING:

The use of a Canadian-flag tug for part of a tow of a coastwise-qualified barge between New Orleans, Louisiana, and Ecanaba, Michigan, via Montreal, Canada, is violative of 46 U.S.C. App.

Sincerely,

Acting Chief

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