VES-3-02-CO:R:IT:C 111314 LLB
Mr. John W. Kelleigh
105 Draper Road
Wayland, Massachusetts 01778
RE: Coastwise trade; Passenger transportation; Charter; Voyage
to nowhere; Territorial sea; 46 U.S.C. App. 289
Dear Mr. Kelleigh:
Reference is made to your letter of September 20, 1990, in
which you ask that we reply regarding the proposed use of your
55-foot vessel in passenger charter operations.
FACTS:
The vessel in question is a 55-foot, steel hulled power
boat, built in part in Holland in 1959. You propose to take the
vessel from its current anchorage in Boston, Massachusetts, to
Key West, Florida. It is your intention to offer two-hour
charter cruises for up to fifteen (15) passengers who would
embark at Key West, cruise beyond the territorial waters, and
return to the point of embarkation for disembarkation. It is
stated that no intermediate stops would be made during the course
of any cruise.
ISSUE:
Whether passenger cruises originating and terminating at the
same location, which proceed beyond the territorial waters during
their course and which do not include any intermediate stops, are
permissible under the coastwise trade passenger transportation
statute.
LAW AND ANALYSIS:
The Act of June 19, 1886, as amended (24 Stat. 81; 46
U.S.C. App. 289, sometimes called the coastwise passenger
law), 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 $200 for each passenger so
transported and landed.
For your general information, we have consistently
interpreted this prohibition to apply to all vessels except
United States-built, owned, and properly documented vessels (see
46 U.S.C. 12106, 12110, 46 U.S.C. App. 883, and 19 C.F.R.
4.80).
In interpreting the coastwise laws as applied to the
transportation of passengers, the Customs Service 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. The territorial
waters of the United States consist of the territorial sea,
defined as the belt, three nautical miles wide, adjacent to
the coast of the United States and seaward of the territorial
sea baseline.
The first of these positions, regarding transportation
of passengers entirely within territorial waters on a voyage
in which they embark and disembark at the same coastwise point
is based on a 1900 decision (Treasury Decision 22275). Our
rulings have consistently followed this position.
The second of these positions, regarding transportation
of passengers from a point in the United States to the high
seas or foreign waters and back to the same point, is based
on a 1912 opinion of the Attorney General of the United States
(29 Opinions of the Attorney General 318). We have consistently
followed this position as well.
On the basis of the foregoing interpretations by the
Customs Service, vessels not qualified to engage in the
coastwise trade may be operated on voyages to nowhere in which
passengers 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 does
not touch any other coastwise point. As stated above, this
Customs interpretation is of long-standing duration and is based
on an Opinion of the Attorney General of the United States. We
are aware of no action by the Congress of the United States
in all of the time this interpretation has existed indicating
that our interpretation is contrary to the intent of the
Congress in enacting the coastwise laws, although Congress has
on various occasions since their enactment heard testimony on
their application.
You should be aware, however, that voyages of vessels
carrying offshore fishing parties for hire, regardless of whether
trips extend beyond the three mile limit of the territorial
waters, are considered to be predominantly coastwise in their
nature and object. As such, non-coastwise-qualified vessels may
not legally engage in such voyages. (Treasury Decision 55193(2)).
HOLDING:
A non-coastwise-qualified vessel may engage in the carriage
of passengers for hire on voyages which originate and terminate
at the same coastwise point, so long as such voyages proceed
beyond the territorial sea and no stops are made at other
coastwise points (including any point within the territorial
waters), and so long as the voyage does not involve the carriage
of fishing parties for hire.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch