Coastwise transportation; salvage; material removal; 46 U.S.C. § 80104

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H302351 February 8, 2019 VES-10-01:OT:RR:BSTC:CCR H302351 AMW CATEGORY: Carriers Mr. Jonathan K. Waldron Blank Rome LLP 1825 Eye St. NW Washington, DC 20006 RE: Coastwise transportation; salvage; material removal; 46 U.S.C. § 80104 Dear Mr. Waldron: This is in response to your correspondence dated January 11, 2019, on behalf of Resolve Marine Group, Inc. (“Resolve”). In your submission, you requested U.S. Customs and Border Protection (“CBP”) issue a ruling regarding whether the proposed operation of a foreign-flag salvage barge on the Hudson River in New York State is consistent with the Salvage Statute, 46 U.S.C. § 80104. Our decision follows. FACTS The Tappen Zee Bridge was a cantilever bridge spanning the Hudson River in New York State that was recently replaced by a more modern bridge. As part of the replacement process, a team led by Tappen Zee Contractors (“TZC”) attempted to conduct a piece-by-piece disassembly of the old Tappen Zee Bridge. However, TZC determined that it would be unsafe to disassemble a large portion of the bridge’s east anchor span. TZC instead opted to demolish the supports for this section and retrieve it from the river. Accordingly, on Tuesday, January 15, 2019, the east anchor span of the bridge was dropped into the Hudson River as part of a controlled demolition. Resolve, which is a subcontractor providing marine services related to the demolition, now proposes to use the Norwegian-flagged BOABARGE 30 (the “barge”) to retrieve the east anchor span from the Hudson River. The barge is a heavy-lift vessel that is capable of ballasting eight to twelve meters below the water’s surface. In order to retrieve the east anchor span, coastwise-qualified lift barges will raise the span from the riverbed and transfer it to the deck of the submerged barge. Once the anchor span is placed on the barge, the barge will ballast to the river’s surface and work crews will disassemble the span while it remains on the barge’s deck. The barge will remain stationary throughout this process. Once the anchor span is completely disassembled, the components will be transferred to coastwise-qualified barges for transportation to U.S. ports in accordance with the Jones Act, 46 U.S.C. §§ 55102. ISSUE Whether a foreign-flag barge may be used for the above-described operation without violating 46 U.S.C. § 80104. LAW AND ANALYSIS The Salvage Statute, 46 U.S.C. § 80104(a), provides in pertinent part that: Except as provided in this section or section 80105 of this title, a foreign vessel may not, 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. The CBP Regulations promulgated under the authority of 46 U.S.C. § 80104, 19 C.F.R. § 4.97(a), provide in pertinent part: Only a vessel of the United States . . . shall engage in any salvage operation in territorial waters of the United States unless an application addressed to the Commissioner of Customs to use another specified vessel in a completely described operation has been granted. The question of whether the use of a foreign-flag vessel constitutes a violation of the Salvage Statute is determined by a two-prong test: (1) whether the activity in question constitute salvage; and (2) if the activity does constitute salvage, whether no suitable U.S. vessels are available in the particular locality. In order for a marine operation to constitute “salvage,” according to the law developed in this area, three elements are necessary. See B.V. Bureau Wijsmuller v. United States, 702 F.2d 333, 337 (2d Cir. 1983). These elements are: “marine peril; service voluntarily rendered, not required by duty or contract; and success in whole or in part, with the service rendered having contributed to the success.” Id. at 338 (citing The Sabine, 101 U.S. 384, 25 L.Ed. 982 (1880)). As a threshold matter, however, an object must have a nexus with traditional maritime activities (i.e., a “maritime nexus”) in order to be the subject of salvage. See, e.g., Cope v. Vallette Dry Dock Co., 119 U.S. 625 (1887) (“salvage is only spoken of in relation to ships and vessels and their cargoes”); The Sabine, 101 U.S. 384, 25 L.Ed. 982 (1880); Sunglory Mar. Ltd. v. PHI, Inc., 2016 U.S. Dist. LEXIS 27765, 55-56 (E.D. La. 2016). CBP, similarly, has defined the term “salvage” as “[t]he property which has been recovered from a wrecked vessel, or the recovery of the ship herself.” HQ 115381 (June 15, 2001) (citing Kerchove’s International Maritime Dictionary, 2d Ed., p. 679, (1961)). In addition to traditional maritime vessels, courts have extended this “maritime nexus” to include certain vehicles performing typically maritime functions, including seaplanes, Lambros Seaplane Base, Inc. v. The Batory, 215 F.2d 228 (2d Cir. 1954) and helicopters servicing offshore platforms, Sunglory Mar. Ltd. v. PHI, Inc., 2016 U.S. Dist. LEXIS 27765, 55-56 (E.D. La. 2016). Courts have found no maritime nexus for the following items, however: a dry-dock affixed to a shore and not “intended for navigation,” Cope, 119 U.S. 625 (1887), and a house that fell through ice during transport across a frozen lake, Provost v. Huber, 594 F.2d 717 (8th Cir. 1979). The subject anchor span does not have a sufficient nexus to traditional maritime activities for the proposed extraction to be considered “salvage.” Similar to Cope v. Vallette Dry Dock Co., 119 U.S. 625 (1887), in which the Supreme Court found that a dry-dock that had been attached to the shoreline was not “susceptible of salvage service,” the present matter relates to the recovery of a structure that was originally connected to the riverbank and was not intended to fulfill a navigational function. We also note that the Court in Cope observed in dicta that a “floating bridge” would likewise not be the subject of salvage. See 119 U.S. 625 (1887). Indeed, unlike the maritime vessels, cargo, and modes of transportation that courts have previously found to have a sufficient maritime nexus, we find no connection between the Tappen Zee Bridge, which facilitated over-land automobile traffic, and traditional maritime commerce and transportation. Therefore, because the anchor span does not have a nexus to traditional maritime activities, the proposed extraction is not a salvage operation as contemplated under 46 U.S.C. § 80104(a). HOLDING The proposed activities of the BOABARGE 30 do not constitute “salvage” within the meaning of 46 U.S.C. § 80104 and would therefore not be in violation of the Salvage Statute. Sincerely, Lisa L. Burley Chief/Supervisory Attorney-Advisor Cargo Security, Carriers and Restricted Merchandise Branch Office of Trade, Regulations and Rulings