HQ 113166: Coastwise trade; salvage; 46 U.S.C. App 316(d), 19 CFR 4.97

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 113166

                          July 21, 1994


VES-10-01-CO:R:IT:C 113166 BEW

CATEGORY:  Carriers

Mr. Melvin Garrett
Vice President
Garrett Construction Co.
Post Office Box 9257
Corpus Christi, Texas 78469-9257

RE:  Coastwise trade; salvage; 46 U.S.C. App 316(d), 19 CFR 4.97

Dear Mr. Garrett:

This is in response to your letters of July 15 and 19, 1994,
which request a ruling regarding the use of a foreign-flag vessel
in salvage operations relating to the M/V TEXAS EAGLE.

FACTS:

You state that on June 12, 1994, the M/V TEXAS EAGLE ran upon 
rock jetties at Port Aransas, Texas.  The next day she slid off
of the jetties and started sinking due to large holes in her
hull.  She slowly moved south along the third sand bar in a
partially submerged state for approximately 600 yards completely
sinking.  She is currently located in the surf zone on the second
sand bar.  You state that you than contacted Aker Gulf Marine
concerning the salvage operation.

In your July 19, 1994, letter, you submitted the following chain
of events.

June 16, 1994  Contacted Bissio Marine about marine salvage
               equipment. Rough seas, only work permitted was
               cleaning loose debris from beach.  All
               preparations have been made for potential oil
               spill.

June 17 and 18, 1994   Bad Weather no activity
 June 19, 1994 Mobilized inland barge, and crane to M/V TEXAS
               EAGLE. Started rigging and divers found that the
               M/V TEXAS EAGLE was 1\2 full of  sand. At this
               point the 500 ton crane would break the boat in
               1/2 if it tried to lift it.  Returned to Port.
               This was the first day of calm seas.
June 19, 1994  Put flashing navigation warning light on mast which
               was 4 feet out of water.

June 20, 1994  Started fabrication of platform to be set up at
               salvage site as work platform.

June 21, 1994  Drove and installed work platform at site (beside
               M/V TEXAS EAGLE) set up a compressor and pumps on
               platform.

June 22, 1994  Place sling on stern of M/V TEXAS EAGLE with use of
               divers.

June 23, 1994  Went to site with divers. Weather too rough to work.

June 24, 1994  Took out diver to close engine room doors, but
               excessive sand would not allow door to be closed.

June 25 - 29, 1994  Bad weather no activity.

June 30, 1994  Started air lifting sand from interior of boat
               with 2 dive crews, working 24 hours per day.

July 1 and 2, 1994
               Jetting sling under mid ship for lifting removing
               sand from the interior.                       

July 3, 1994   Beautiful weather, flat seas.  Time to lift and
               Aker Gulf Marine crane superintendent determined
               that he did not want his rig out in open water due
               to heavy seas (his opinion only and influenced by
               Holiday week-end).

July 4, 1994   No activity (no crane)

July 5, 1994   Contacted other large floating crane companys.

               1.  Ocean salvage - ANSWER: Approximately 3 weeks
               will have machine passing area and if good weather
               will pick up.  But will not stop and wait for any
               weather change.

               2.  Laredo Construction - ANSWER: Equipment out of
               service 3 to 4 weeks.
               3.  King Fisher Marine -  ANSWER:   Does not have
               required equipment.

               4.  Leroy Stanley - NO RESPONSE

July 06, 1994  No activity on site.  Contacted Glenway and had
               very positive response.

July 07, 1994  Negotiated contract for mob and demob and 3
               consecutive days on site if required.

July 08, 1994  Signed contract with Glenway

July 10, 1994  Called out dive crews to clean out additional sand
               in preparation of lift next day.

July 11, 1994  TITAN V, came in about 0630 and started preparing
               for lift. U.S. Coast Guard told us that it would
               be okay to carry the M/V TEXAS EAGLE in the slings
               over to the north side of the north jetty to a
               calm area for safety reasons.  Mr. Frederickson
               with Glenway called me and asked if I could get a
               waiver in writing from the U.S.C.G.  It was his
               understanding that if he pulled up anchors while
               the salvage was on the hook he would be violating
               the Jones Act.

July 12, 1994  TITAN V came in Port due to weather and not having
               a decision as to its legal ability to work inside
               the 3-mile limit.

July 13, 1994  Entire day spent trying to find out legal measures
               and correct interpretation of the Jones Act. 
               TITAN V still at our dock.  Contact T $ T Marine -
                answer: Not interested.

July 15, 1994  Duplicate of the 13th and contacted Bay
               Construction about possible equipment.

July 16, 1994  Contacted Bissio Marine again and were informed
               that they did not get message the fist time.  They
               said that they would come to look at it on the
               19th or 20th and if they could do it, it would be
               2 or 3 weeks before the work could start with
               weather permitting.  Contacted Ocean Salvage and
               got the same answer about passing by in a couple
               of weeks but not stoppling if seas were rough.  No
               firm date available.  Bay construction looked at
               site but would require more water depth for tug
               than is available.

You further state that you presently have a boat out at the site
to change the warning light.  The longer the M/V TEXAS EAGLE
remains at the surf line, she is subject to breaking up and
releasing the remaining oil on board.  You state that she is a
not hazard to the shipping industry, but she is a hazard to small
boats and shrimp boats.  Finally, you state that the kids on the
beach will continue to  try to board her by means of using surf
boards to paddle out to the wreck location.

ISSUE:

Whether the use of a foreign-flag vessel within the territorial
waters of the United States for a salvaging operation is a
violation of U.S. coastwise laws.

LAW AND ANALYSIS:

Paragraph (d) of the Act of June 11, 1940, as amended (46 U.S.C.
App. 316(d)), provides, in pertinent part, that:

         No foreign vessel shall, under penalty of
         forfeiture, engage in salvaging operations on
         the Atlantic or Pacific coast of the United
         States, in any portion of 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 [46
         U.S.C. App. 725] of this title:  Provided,
         however, That if, on investigation, the
         Secretary of the Treasury 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 authorized use.

Similarly, Customs Regulations (19 CFR 4.97(a)) prohibit salvage
in the territorial waters of the U.S. by vessels other than a
vessel of the U.S., a numbered motorboat owned by a citizen,
Mexican or Canadian vessels as authorized by treaty, or a vessel
which has been granted special permission by the Commissioner of
Customs by virtue of the unavailability of a suitable U.S.
vessel.
 Section 4.97(b), provides that upon receipt of an application,
the Commissioner of Customs will cause an investigation to be
made immediately to determine whether a suitable vessel of the
United States or a suitable numbered motorboat owned by a citizen
is available for the operation.  If he finds that no such vessel
is available and that the facts otherwise warrant favorable
action, he will grant the application.

A copy of your correspondence was sent to the U.S. Coast Guard
Marine Safety Office, Corpus Christi, Texas, the Maritime
Administration, and the Customs office in Corpus Christi, Texas.
During the past several days, we have done an extensive
investigation of the facts and circumstances surrounding this
operation and have determined that there is not a 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 available to do this
operation.  Accordingly, we are authorizing the use of the TITAN
V, a Russian-flag vessel to perform the salvaging operation of
the M/V TEXAS EAGLE. 

The coastwise laws pertaining to the transportation of
merchandise and passengers (46 U.S.C. 883 and 289, respectively)
prohibit the use of any vessel other than a vessel built in,
owned by citizens of, and documented in the United States to
transport merchandise or passengers between points in the United
States embraced within the coastwise laws.  

In interpreting the coastwise laws, Customs has ruled that a
point in United States territorial waters is considered a point
embraced within the coastwise laws.  The coastwise laws generally
apply to points in the territorial sea, defined as the belt,
three (3) 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 the
coastline differ.

Even though the TITAN V is being authorized to perform the
salvaging operation, however, she is prohibited from transporting
passengers or merchandise from the shore to the wreck site.

HOLDING:

An investigation has been made and it is determined that a
suitable vessel of the United States or a suitable numbered
motorboat owned by a citizen is not available in the locality for
the salvage operation of the M/V TEXAS EAGLE. 
 The TITAN V, a foreign-flag vessel may be used for the salvage
operation of the M/V TEXAS EAGLE located within the territorial
waters Port Aransas without incurring a penalty for violation fo
the coastwise laws.

                                      Sincerely,




                                      Arthur P. Schifflin
                                      Chief
                                      Carrier Rulings  Branch