VES-5-CO:R:IT:C 112135 LLB
Mr. Glenn G. Kolk
520 Brickell Key Drive
Suite 1606
Miami, Florida 33131
RE: Vessel entry and clearance; Voyage to nowhere; United
States-flag vessel; Outside of port limits; 19 U.S.C. 1434;
19 U.S.C. 1447; 46 U.S.C. App. 91
Dear Mr. Kolk:
Reference is made to your facsimile transmission of April
18, 1992, which specifically narrows the scope of your letter of
March 13, 1992. Your inquiry concerns vessel entry and
clearance requirements which may be applicable to American-flag
vessels proceeding on voyages to nowhere.
FACTS:
It is proposed that a United States-flag vessel (which for
the purposes of this ruling we assume to be non-coastwise-
qualified), be used to transport passengers on voyages from a
point in the United States to the high seas and back again to the
same domestic point. In a letter dated March 13, 1992, it was
anticipated that the passengers would be permitted to engage in
casino gambling activities while in international waters due to
recent amendments to the Johnson Act (15 U.S.C. 1172), the
statute which restricts the carriage of gaming aboard American
vessels. Since it is necessary that the Department of Justice
interpret the scope and applicability of that amended statute,
the area of inquiry to the Customs Service was narrowed in a
letter dated April 18, 1992.
We are most recently asked to exclude from our consideration
any shipboard gambling issues. It is specifically stated that
the sole issue for which guidance is being sought is whether
formal vessel clearance is required for United States-flag
vessels engaging in voyages to nowhere. The question is posed in
light of the vessel operators intention to operate from a
location outside the geographical limits of a Customs port of
entry.
ISSUE:
Whether United States-flag vessels engaging in passenger
carriage on voyages to nowhere are required to obtain vessel
clearance upon their departure, or to formally enter upon their
return. Further, if such formalities are not required, may such
vessels conduct business from areas outside of Customs port
limits.
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.
Section 433, Tariff Act of 1930, as amended (19 U.S.C.
1433), provides the immediate report of arrival requirements for
vessels arriving in the United States. For American-flag vessels
the requirement is effective for vessels either arriving from a
foreign port or place, or vessels carrying either bonded or
unentered foreign merchandise. For purposes of the report of
arrival statute, the definition of a foreign port or place
includes a hovering vessel or any vessel from which merchandise
is received, when such vessel is beyond the three mile
territorial sea boundary.
Section 434, Tariff Act of 1930, as amended (19 U.S.C.
1434), provides that except for circumstances not here relevant
formal vessel entry is required of United States-flag vessels
arriving from foreign ports or places. As in the case of section
1433, a foreign port or place for purposes of this statute
includes hovering vessels or vessels from which merchandise is
received, but does not include the high seas.
For those vessels which are required to enter, section 447,
Tariff Act of 1930, as amended (19 U.S.C. 1447), provides that
entry shall be made at a port of entry (except for circumstances
in which good cause is shown). In excepted cases, authority is
provided for entry to be permitted outside a port of entry.
Pursuant to section 91 of title 46, United States Code
Appendix (46 U.S.C. App. 91), vessels departing in trade and
proceeding to a foreign port are required to obtain clearance
from Customs. This provision is administered under section 4.60,
Customs Regulations (19 CFR 4.60), subsection (e) of which (19
CFR 4.60(e)), provides:
No vessel shall be cleared for the
high seas except, a vessel bound
to another vessel on the high
seas...
In practical terms this means that clearance is not required for
departure to the high seas only.
In the present case, an American-flag vessel need not clear,
enter, or report its arrival if engaging in true voyage to
nowhere cruises. By this it is meant that passengers must embark
and disembark at the same point in the United States, and the
vessel must proceed beyond the three mile limit of the
territorial seas and not stop at any other coastwise point
including a point in territorial waters. Since the requirement
to enter is not operative, such cruises may begin and end at a
point outside the limits of a Customs port of entry.
HOLDING:
A non-coastwise-qualified United States-flag vessel may
conduct voyages to nowhere (as defined in the Law and Analysis
portion of this ruling), without the necessity to obtain
clearance, to report arrival, or to formally enter. Such
activities may be conducted outside the limits of a Customs port
of entry.
The scope of this ruling is limited issues concern the
clearance, entry, and report of arrival requirements affecting
non-coastwise-qualified United States-flag vessels conducting
genuine voyages to nowhere. The ruling does not address
shipboard gambling issues, nor does it constitute any approval to
engage in such activities.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch