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HQ 115048

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June 2, 2000

VES-10-03-RR:IT:EC 115048 GEV

CATEGORY: CARRIER

Jeffrey F. Lawrence, Esq.
Heather M. Spring, Esq.
Sher & Blackwell
Suite 900
1850 M Street, N.W.
Washington, D.C. 20036

RE: Towing; 46 U.S.C. App. § 316(a)

Dear Mr. Lawrence and Ms. Spring:

This is in response to your letter dated May 16, 2000, on behalf of your client, [ ], requesting a ruling regarding the applicability of the coastwise towing statute to a prospective towing operation. Our ruling on this matter is set forth below.

FACTS:

[ ] has contracted with [ ] in China to tow a new-building drydock from China to the [ ] in [ ]. The majority of the tow will be performed by a single oceangoing tug which will connect to the drydock in China and will remain connected to the drydock until it reaches the [ ]. The ocean tug will be foreign-flagged. Once the drydock reaches the United States, it must be towed approximately 12 nautical miles up the [ ] River before it reaches its final destination. The river is narrow in places and the passage is obstructed by various islands, shallow patches, rocks, etc., including a double 90 degree bend close to [ ]. Further, there are strong currents that run both up- and down-river and combine with cross-currents.

Due to the difficult navigability of the river and the large size of the drydock it will be necessary to employ powerful and highly maneuverable assist tugs for the river portion of the towage. A total of five assist tugs will be utilized, of those five it would be preferable to use at least two tractor tugs. There are, however, no immediately available tractor tugs that are coastwise-qualified.

With respect to this proposed towing operation, you request that we consider the following two scenarios:

The ocean going tug attaches to the drydock in China and tows the drydock to a point off the coast of the United States, within the territorial waters, where five assist tugs, including two tractor tugs that are not coastwise-qualified, are attached without disconnecting the ocean going tug. All six tugs proceed with the drydock up the river to [ ] where they are all disconnected.

The same facts as above, except that tractor tugs are attached at a point beyond the territorial waters of the United States (i.e., more than three miles seaward of the territorial sea baseline).

ISSUE:

Whether the use of non-coastwise-qualified tugs as described in the above two scenarios 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.

With respect to the administration of 46 U.S.C. App. § 316(a), it is the position of the U.S. Customs Service that in addition to towing and pushing, “towing assistance” is also within the purview of this statute and covers those instances whereby an assisting vessel is in direct contact with an assisted vessel (including hull to hull, by towline,
including if only pre-tethered, or made fast to that vessel by one or more mooring lines) for purposes of exerting force on the assisted vessel to control or assist in controlling the movement of that vessel in U.S. territorial waters. (See Customs Bulletin and Decisions, Vol. 32, No. 49, December 9, 1998, at pp. 44-47)

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 use of the foreign-flagged ocean tug, it will commence its tow of the drydock in China (a non-coastwise point) and at all times remain connected until the tow is terminated at [ ] in [ ] (a coastwise point). Since this continuous tow is not between points embraced within the coastwise laws, the use of this vessel to effect this tow is not violative of 46 U.S.C. App.

In regard to the use of the tractor tugs in question, should they be non-coastwise-qualified, any towing assistance they would render must commence beyond U.S. territorial waters in order to be in compliance with 46 U.S.C. App. § 316(a).

HOLDING:

As discussed in the Law and Analysis portion of this ruling, the use of non-coastwise-qualified tugs as described in the above two scenarios is violative of 46 U.S.C. App. § 316(a) only with respect to the former (i.e., the tractor tugs render towing assistance commencing and terminating in U.S. territorial waters).

Sincerely,

Acting Chief

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