VES-3-02-RR:BSTC:CCI 116629 IDL
Randall Isham
Business Manager
Key West Submarines, LLC
7013 Shrimp Road B
Key West, Florida 33040
Re: Coastwise trade; Voyage to nowhere; Submarine Tours; Passenger
Vessel Services Act; 46 U.S.C. App. § 289
Dear Mr. Isham:
This is in response to your letter, dated March 11, 2006, concerning a request for a ruling on a proposed tourist submarine operation and 46 U.S.C. App. § 289. Our response on this matter is set forth below.
FACTS:
Key West Submarines, LLC is proposing to operate a tourist submarine operation from the Port of Key West, Florida. Up to 45 passengers would be transported from Key West on a U.S.-owned, Bahamian-flagged passenger ferry, the SHOOTING STAR, and transferred onto a U.S.-owned, Panamanian-flagged passenger submarine, the SIRENA, for diving operations in international waters four to five miles south of Key West and Stock Island land masses.
After the submarine dive, all passengers would be transported back to the Port of Key West via the SHOOTING STAR. The SIRENA, with no passengers present, would be either towed to and from Safe Harbor on Stock Island or moored at the dive sites.
The SHOOTING STAR will be safety inspected by the U.S. Coast Guard (USCG) and the American Bureau of Shipping (ABS). The SIRENA has been operating in the U.S. territorial waters of Saipan for the last sixteen years under continued USCG and ABS safety inspections.
ISSUE:
Whether the use of a foreign-flagged ferry and submarine, as described above, would violate 46 U.S.C. App. § 289?
LAW AND ANALYSIS:
U.S. Customs and Border Protection (CBP) enforces various navigation laws which deal with the use of vessels in what is recognized as coastwise trade. Included among these laws is the Act of June19, 1886, as amended (24 Stat. 81; 46 U.S.C. App. § 289, commonly known as the Passenger Vessel Services Act, or the coastwise passenger law), which provides that:
No foreign vessel shall transport passengers between ports or places in
the United States, either directly or by way of a foreign port, under a
penalty of $300 for each passenger so transported and landed.
Pursuant to section 4.50(b), CBP Regulations (19 CFR 4.50(b)), the word “passenger,” for purposes of the above-cited statute, is defined as “…any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business.”
CBP has consistently interpreted the prohibition set forth in 46 U.S.C. App. § 289 to apply to all vessels except United States-built, owned, and properly documented vessels (see 46 U.S.C. §§ 12106, 12110). Furthermore, CBP has promulgated regulations pursuant to section 289. These regulations may be found in Title 19, Code of Federal Regulations, section 4.80a (19 CFR 4.80a).
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 coastline differ.
In interpreting the coastwise laws as applied to the transportation of passengers, 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 point, is considered coastwise trade subject to the coastwise laws. However, the transportation of passengers to the high seas or foreign waters and back to the point of embarkation, assuming the passengers do not go ashore, even temporarily, at another United States point, often called a “voyage to nowhere,” is not considered coastwise trade. This position is based on a 1912 opinion of the Attorney General of the United States (29 Opinions of the Attorney General 318). HQ 108228 (April 18, 1986).
On the basis of the foregoing interpretations by CBP, foreign-flagged vessels, or other vessels not qualified to engage in the coastwise trade, could be operated on voyages to nowhere in which passengers were transported from a point in the United States to a point outside United States territorial waters and back to the point of the passengers’ embarkation, assuming the vessel did not touch any other coastwise point. Although this would not be so if the voyage involved fishing activity, the transportation would be permitted for sightseeing, whale watching, and similar activities. HQ 108228.
Further, CBP has held that the transportation of passengers in a foreign-built submersible vessel for a tour beginning and ending outside of the U.S. territorial waters is not prohibited by 46 U.S.C. App. § 289, does not constitute coastwise trade, and is not a matter of concern under the coastwise laws. See HQ 113355 (March 1, 1995) and HQ 111828 (October 21, 1991).
Finally, the movement of the submersible vessel without passengers between Key West and a diving site located beyond U.S. territorial waters, in either direction, or the mooring of such vessel at the dive site, would not be prohibited by 46 U.S.C. App. § 289.
HOLDING:
Accordingly, the use of a foreign-flagged ferry and submarine, as described above, would not violate 46 U.S.C. App. § 289.
Sincerely,
Glen E. Vereb
Chief
Cargo Security, Carriers and Immigration Branch