VES-3-02-OT:RR:BSTC:CCR H266819 KLQ
Captain Keith Douglass
Boy Scouts of America
Florida National High Adventure Sea Base
73800 Overseas Highway, P.O. Box 1906
Islamorada, FL 33036
RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b).
Dear Captain Douglass:
This letter is in response to your June 26, 2015 ruling request, in which you inquire as to whether the operation of the non-coastwise-qualified vessel, M/V ISABELLA (“vessel”), in United States (“U.S.”) territorial waters would constitute a violation of 46 U.S.C. § 55103. Our decision follows.
FACTS
The following facts are from your ruling request and emails to the office dated, July 14, 2015 and July 23, 2015. The Florida Sea Base is a 501(c)(3) non-profit organization owned and operated by the Boy Scouts of America. The subject vessel, a 32-foot, Canadian-built, Bayfield sailboat was recently donated to the Florida Sea Base.
You indicate that the subject vessel will be used to train Scouts and their adult leaders in sailing and vessel handling during the months of June, July and August, and occasionally during the months of December, February and March when the Scouts are out of school for holidays. Scouts and their adult leaders will embark and disembark the subject vessel in Summerland Key, Florida. Prior to leaving the berth, the Scouts and their adult leaders will: (1) check the diesel auxiliary’s oil level; (2) ensure all of the proper safety gear is aboard; and (3) receive a briefing on the day’s itinerary and the vessel’s course. Once the vessel is underway, the Scouts and their adult leaders will learn: (1) sail and ship handling; (2) anchoring and docking; and (3) navigation and Very High Frequency (“VHF”) radio operation skills. The vessel normally operates within U.S. territorial waters; however, on occasion the vessel will operate three to five miles from shore.
ISSUE
Whether the transportation of the subject individuals would constitute a violation of 46 U.S.C. § 55103?
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. Such a vessel, after it has obtained a coastwise endorsement from the U.S. Coast Guard, is said to be “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.
The coastwise law applicable to the transportation of passengers is found in 46 U.S.C. § 55103 which provides:
(a) In General. Except as otherwise provided in this chapter or chapter 121 of this title, a vessel may not transport passengers between ports or places in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel-
(1) is wholly owned by citizens of the United States for purposes of engaging in coastwise trade; and
(2) has been issued a certificate of documentation with a coastwise endorsement under chapter 121 or is exempt from
documentation but would otherwise be eligible for such a certificate and endorsement.
(b) Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed.
The Customs and Border Protection (“CBP”) Regulations, promulgated under the authority of 46 U.S.C. § 55103, provides, “[a] passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business.”
You indicate that the subject non-coastwise-qualified vessel will transport the subject individuals within the territorial sea. CBP has ruled that the carriage of passengers entirely within territorial waters, even though the passengers disembark at their point of embarkation and the vessel touches no other coastwise point, is considered coastwise trade subject to the coastwise laws. Pursuant to 46 U.S.C. § 55103, a vessel may not transport passengers between coastwise points unless it is coastwise-qualified. The subject vessel is not coastwise-qualified insofar as it was built in Canada.
However, you indicate that the vessel will serve as a sailing and navigation school for the individuals onboard the vessel. CBP has consistently held that “a person transported on a vessel as a student in bona fide instructional courses in oceanography or sailing and navigation/seamanship, when the presence of that person is required onboard the vessel as a part of his or her course or training, is not a passenger for purposes of the coastwise laws.” In the present case, you state that the subject individuals will learn sailing, navigating and seamanship skills while onboard the vessel. Insofar as the individuals learn to pilot and navigate the subject vessel, their presence is required on the subject vessel as part of their training. Therefore, the subject individuals are not passengers for purposes of the coastwise laws. Insofar as the subject individuals are not passengers, it would not be a violation of 46 U.S.C. § 55103 for the subject non-coastwise-qualified vessel to transport the subject individuals within U.S. territorial waters.
In conclusion, the individuals onboard the vessel who are engaged in a piloting and navigation training, and the presence of those individuals onboard is necessary to receive the training, are not considered passengers for purposes of the coastwise laws. Therefore, as long as all of the individuals transported on the subject vessel receive the training, the transportation of those individuals will not constitute a violation of 46 U.S.C. § 55103.
You also indicate that on occasion, the subject vessel will transport individuals three to five miles from shore, or beyond the territorial sea. In its administration of 46 U.S.C. § 55103, CBP has consistently ruled that the transportation of passengers to the high seas (i.e. beyond U.S. territorial waters) and back to the point of embarkation, assuming the passengers do not go ashore, even temporarily, at another U.S. point, often called a “voyage-to-nowhere,” is not considered coastwise trade. Therefore, the subject vessel would not be engaged in coastwise trade if it transports passengers beyond U.S. territorial waters and the passengers embark and disembark from the same coastwise point.
In conclusion, if the subject vessel transport passengers on a “voyage-to-nowhere,” that transportation would not be a violation of 46 U.S.C. § 55103.
HOLDING
The transportation of the subject individuals engaged the navigation and piloting training would not constitute a violation of 46 U.S.C. § 55103. In addition, a “voyage-to-nowhere,” is not considered coastwise trade; therefore, the transportation of passengers on a “voyage-to-nowhere,” would not constitute a violation of 46 U.S.C. § 55103.
Sincerely,
Lisa L. Burley
Chief/Supervisory Attorney-Advisor
Cargo Security, Carriers and Restricted Merchandise Branch
Office of International Trade, Regulations and Rulings
U.S. Customs and Border Protection