VES--03-CO:R:IT:C 112528 BEW
Mr. J. J. Van Den Berg
13127 Indian Creek Road
Houston, Texas 77079
Re: Pleasure Vessel; Foreign-Flag Vessel; Alien Ownership; State
Registered
Dear Mr. Van Den Berg:
This is reference to your letter of November 11, 1992, in
which you request for a ruling concerning the use of a Dutch-Flag
sailing vessel in the waters of the United States.
FACTS:
You state that you are planning to buy a sailboat and sail it
to the Bahamas under a Dutch Flag. You state that the subject
vessel will be owned by you and Mrs. Van Den Berg, who are Dutch
citizens, but who have worked and lived in the United States since
1979 as resident aliens. You ask whether you will be sailing a
foreign-flag pleasure boat.
You also ask what is required when you leave and return to
the United States after a nine month trip outside of the United
States. You also request information concerning cruising licenses,
navigation fees and the length of time that the boat may remain in
the United States. Lastly, you requested a copy of Publication
544. A copy of Customs Publication 544 "Pleasure Boats" is
enclosed for your information.
ISSUES:
1. Whether a "licensed yacht" or "undocumented foreign-flag
pleasure vessel" which is owned by a resident alien in the
United States is exempt from entry and clearance within the
meaning of the provisions in 19 U.S.C. 1441(3) and 46 U.S.C.
App. 91.
2. Whether a cruising license may be issued to an
undocumented foreign-owned pleasure vessel, which is State
registered, and owned by a Dutch citizen.
LAW AND ANALYSIS:
The master of any foreign vessel arriving in a United States
port, whether from a foreign port or another United States port,
is required under the provisions of title 19, United States Code,
section 1433 (19 U.S.C. 1433), to immediately report its arrival.
Section 1433, provides in pertinent part, that immediately upon the
arrival at any port or place in the United States or Virgin Islands
of: (1) any vessel from a foreign port or place; (2) any foreign
vessel from a domestic port; or (3) any vessel of the United States
carrying bonded merchandise, or foreign merchandise for which entry
has not been made, the master of the vessel shall report the
arrival at the nearest customs facility or such other place as the
Secretary may prescribe by regulation.
In addition, the master of any foreign vessel arriving in a
United States port, whether from a foreign port or another United
States port is required to make vessel entry under title 19, United
States Code, section 1435 (19 U.S.C. 1435), and section 4.3 of
the Customs Regulations (19 CFR 4.3). Such vessels are also
required to clear when bound for a foreign port, and must have a
permit to proceed from one United States port to another.
Paragraph (3) of 19 U.S.C. 1441, exempts from entry in the
United States licensed yachts or undocumented American pleasure
vessels not engaged in trade nor in any way violating the Customs
or navigation laws of the United States and not having visited any
hovering vessel. The statute requiring vessel clearance of a
vessel bound to a foreign port or place (46 U.S.C. 91) contains
a similar provision under which "a licensed yacht or an
undocumented American pleasure vessel not engaged in any trade nor
in any way violating the customs or navigation laws of the United
States" is exempt from clearance.
Customs interpretation of the term "licensed yacht or
undocumented American pleasure vessel" in 19 U.S.C. 1441(3) and
46 U.S.C. App. 91, under which such vessels are exempt from
vessel entry and clearance under the circumstances described
therein, is as follows:
(1) A "licensed yacht or undocumented American pleasure
vessel" includes:
(a) A pleasure vessel documented by the United States
Coast Guard under 46 U.S.C. chapter 121; and
(b) An undocumented pleasure vessel owned by a citizen
of the United States, regardless of whether the
United States citizen is a resident of the United
States and regardless of whether the vessel is
numbered under a State numbering system.
Customs has held that an undocumented American pleasure vessel
must meet the same requirements as a documented American pleasure
vessel, except that for its tonnage it is not documented. To be
eligible for documentation, a vessel must be: (1) of at least 5 net
tons; (2) not registered under the laws of a foreign country; and
(3) owned by a citizen of the United States (See 46 U.S.C. 12102;
46 CFR Subpart 67.03). There is no residency requirement for
United States vessel documentation.
Customs has ruled that an undocumented pleasure vessel which
is numbered under a State numbering system may not be considered
an undocumented American pleasure vessel unless it qualifies,
except for tonnage, for documentation under 46 U.S.C. 12102.
Consistent with this conclusion, a "licensed yacht or
undocumented American pleasure vessel" does not include a pleasure
vessel documented under a foreign flag, regardless of whether it
is owned by a citizen of the United States and regardless of
whether it is numbered under a State numbering system; and an
undocumented pleasure vessel owned by a foreign citizen, regardless
of whether it is numbered under a State numbering system. The
Customs Regulations provide under section 4.3, footnote 9 (19 CFR
4.3 n. 9) that, "Every undocumented vessel of 5 net tons or over
owned by an alien, whether or not such alien is a resident of the
United States is a foreign vessel". (Consistent with this
position, see also The Chiquita, 19 F.2d 417 (1927); Moore,
International Law, vol. 2 pp. 1002-1009, cited in The Chiquita; and
80 Corpus Juris Secundum 569, citing The Chiquita; but see contra,
46 U.S.C. 2101(46) defining "vessel of the United States" to
include numbered vessels for purposes of 46 U.S.C. Subtitle II
(These laws do not include laws relating to Customs entry
requirements)). Generally, a vessel such as the subject vessel,
which is 41', will admeasure over 5 net tons.
With regard to state numbering, we note that under the Coast
Guard Regulations on state numbering, a state numbering system may
require the numbering of any vessel subject to the jurisdiction of
the state with certain exceptions (see 33 CFR 174.11(b)).
A vessel with a state certificate or number is not considered
"a documented vessel" as that term is used under laws and
regulations administered by the Customs Service. Since you are
Dutch citizens, until such time as your vessel becomes documented
in the Netherlands or other foreign country, Customs considers your
vessel an undocumented Dutch vessel.
Title 46, United States Code Appendix, section 104 (46 U.S.C.
App. 104), authorizes the issuance of cruising licenses to
pleasure vessels of countries which extend reciprocal privileges
to United States pleasure vessels. The Netherlands is such a
country. The license is granted subject to the condition that the
vessel will not engage in trade or violate the laws of the United
States in any respect. (See 19 CFR 4.94(c), copy enclosed). A
cruising license does not exempt a vessel from the requirement to
report its arrival in the United States to Customs immediately upon
such arrival (see 19 U.S.C. 1433 and 19 CFR 4.2). If the subject
vessel were documented under the Netherlands or another country
which extends reciprocal privileges to the United States, it would
be eligible for a cruising license.
Finally, you should be aware that under the provisions of
section 4.2a of the Customs Regulations (19 CFR 4.2a), there are
special requirements for reporting of arrival from any foreign port
or place by small vessels whose intended destination is a point
within the jurisdiction of Miami, Florida. Operators of small
vessels (i.e. any vessel of less that 5 net tons, and any private
vessel, regardless of displacement) shall immediately report their
arrival in the United States.
Under the provisions of 46 U.S.C. App. 313 and 314, foreign-
flag vessels, including pleasure vessels are required to obtain
permits to proceed when proceeding between United States ports.
In conclusion, a cruising license may be issued to such a
vessel at the port of first arrival. Section 4.94 of the Customs
Regulations, provides that a foreign-flag yacht which is not in
possession of a cruising license is required to comply with the
laws of the United States applicable to vessels arriving at,
departing from, and proceeding between ports of the United States.
Accordingly, without a cruising license, your foreign-flag vessel
would be required to obtain permits to proceed between the port of
first arrival and other U.S. ports.
With regard to the trip from Houston to the Bahamas, you would
have to clear the vessel at the port of Houston for the outbound
trip and report your arrival, enter and clear the vessel at the
U.S. port of first arrival. If you do not obtain a cruising
license, you must enter and clear that vessel each time you arrive
and depart from a U.S. port on entry. A permit to proceed may be
issued on either your outbound trip and/or your inbound trip to
other U.S. ports where you wish to make stops.
Section 4.61(d) of the Customs regulations provides that
clearance shall not be granted to any foreign vessel using the flag
of the United States or any distinctive signs or markings
indicating that the vessel is an American vessel (see 22 U.S.C.
454a).
Information concerning the flying of flags on vessels may be
obtained from the U.S. Coast Guard in the Houston District. You
may also wish to refer to Chapman's Nautical Guides on boating
etiquette.
The current navigation fees are contained in Treasury Decision
85-70, dated April 17, 1985, copy enclosed.
HOLDINGS:
1. An undocumented pleasure vessel owned by a resident alien
in the United States, whether State registered or not, is for
Customs purposes considered an undocumented foreign vessel and
is not exempt from entry and clearance within the meaning of
the provisions in 19 U.S.C. 1441(3) and 46 U.S.C. App. 91.
2. A cruising license may be issued under the provisions of
46 U.S.C. App. 104 to a pleasure vessel, owned by Dutch
citizens, provided that the vessel is documented under the
laws of the Netherlands or another country which extends
reciprocal privileges to pleasure vessels of the United
States.
Sincerely,
Acting Chief
Carrier Rulings Branch
Enclosures