46 U.S.C. App. 883; Coastwise transportation; Submarine cable in U.S. territorial waters transported to U.S. port

HQ 114692 May 12, 1999 VES-3-RR:IT:EC 114692 GOB CATEGORY: Carriers Anne Smith Proposal Manager Cable & Wireless Maritime Inc. 2605 Stirling Road Fort Lauderdale, FL 33312 RE: 46 U.S.C. App. 883; Coastwise transportation; Submarine cable in U.S. territorial waters transported to U.S. port Dear Ms. Smith: This is in response to your letter of May 10, 1999 with respect to proposed activity by Cable & Wireless Maritime Inc. (“Cable & Wireless”). FACTS: You describe the facts as follows. Cable & Wireless has been contracted to recover “out of service” submarine cables which are located in U.S. territorial waters off the New Jersey coast. After the cable has been located, Cable & Wireless proposes to cut and recover 500 meters of the cable on the deck of the recovering vessel. It has located a party in New Jersey who will accept the recovered cable. You ask whether a foreign-flag vessel may “recover the cable as described above and discharge the cable ashore in New Jersey.” ISSUE: Whether the proposed activity may be accomplished in accordance with the coastwise laws, i.e., whether a foreign-flag vessel may recover cable in U.S. territorial waters and discharge the cable in a U.S. port? 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. A vessel that is built in, documented under the laws of, and owned by citizens of the United States, and which obtains a coastwise endorsement from the U.S. Coast Guard, is referred to as "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. 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. Equipment and supplies of the transporting vessel are not considered “merchandise” for this purpose. 19 CFR 4.80b(a) provides in pertinent part that a coastwise transportation of merchandise takes place when merchandise laden at a point embraced within the coastwise laws is unladen at another coastwise point, regardless of the origin or ultimate destination of the merchandise. The proposed activity involves the lading of merchandise (i.e., the submarine cables) on a vessel at a coastwise point (i.e., a point in the territorial waters of the U.S.) and the unlading of such merchandise at a second coastwise point (i.e., a point in New Jersey). Such activity is the coastwise transportation of merchandise which may only be accomplished by a coastwise-qualified vessel. 46 U.S.C. App. 883. This determination is consistent with our determination in Ruling 113405 of April 19, 1995 where we held that a non-coastwise-qualified vessel may not transport scrap cables recovered from a vessel in U.S. territorial waters from the point in U.S. territorial waters to a U.S. port.  HOLDING: The transportation of submarine cable from a point in U.S. territorial waters to a U.S. port by a foreign vessel is prohibited by 46 U.S.C. App. 883. Sincerely, Jerry Laderberg Chief, Entry Procedures and Carriers