# HQ 115962

# July 7, 2003

# 

# 

# VES-3-07:RR:IT:EC 115962 TLS

## CATEGORY: Carriers

Mr. Edwin A. Scotton

Director, Logistics

Alstom Power, Inc.

200 Day Hill Road

Windsor, Connecticut 06095

Dear Mr. Scotton:

This is in response to your letter dated March 28, 2003 in which you
inquire about the Jones Act compliance of your company's proposed plans
to partially discharge cargo from a foreign-flagged vessel arriving from
a foreign port to U.S.-operated barges, and then transport the remaining
cargo in the foreign-flagged vessel to a U.S. port. The barges would be
towed coastwise with U.S.-flagged vessels.

FACTS:

You state that a foreign-flagged vessel will import large, heavy, steam
(or other vapor) generating boiler parts from Indonesia and Thailand.
The foreign-flagged vessel will dock at Port Washington, a coastwise
destination, and discharge the boiler parts onto U.S.-operated barges
using heavy lift gear. Before the vessel arrives at Port Washington,
however, the plan is to discharge some of the boiler parts onto
U.S.-operated barges at other coastwise locations. The barges would then
be towed to Port Washington using U.S.-flagged towing vessels and
discharged using the heavy lift gear on the foreign-flagged vessel.

ISSUES:

Whether the use of a foreign-flagged vessel in the scenario described
above is violative of 46 U.S.C. App. § 883.

Whether the use of domestically-operated barges in the scenario
described above is violative of 46 U.S.C. App. § 883.

Whether the use of a U.S.-flagged towing vessel in the scenario
described above is violative of 46 U.S.C. App. § 316(a).

LAW AND ANALYSIS:

Title 46, United States Code Appendix, § 883, the merchandise coastwise
law often called the "Jones Act", provides 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 one that is
coastwise-qualified (i.e., U.S.-built, owned and documented).

Title 46, United States Code Appendix, § 316(a), the towing coastwise
law, 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.

The coastwise laws generally apply to points in 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 the coastline differ.

In the scenario you present, the foreign-flagged vessel may discharge
foreign-laden cargo directly at a United States location and onto
domestically-operated barges (i.e., in U.S. territorial waters) that
would be towed to a subsequent coastwise point for the discharge of the
remaining cargo. The barges may transport merchandise between two or
more coastwise points without restriction provided they are
coastwise-qualified (see above).

The coastwise towing vessel, as you describe it, would be allowed to tow
the barges to the destination coastwise point provided it is
coastwise-qualified.

HOLDINGS:

The use of a foreign-flagged vessel in the scenario described above is
not violative of 46 U.S.C. App. § 883.

The use of domestically-operated barges in the scenario described above
is not violative of 46 U.S.C. App. § 883 provided such barges are
coastwise-qualified.

The use of a U.S.-flagged towing vessel in the scenario described above
is not violative of 46 U.S.C. App. § 316(a) provided it is
coastwise-qualified.

Sincerely,

Glen E. Vereb

Chief

Entry Procedures and Carriers Branch