VES-3-02-CO:R:IT:C 112189 LLB
Mr. Pierre Rosier
Marine Charters, Inc.
P.O. Box 828
Kihei, Hawaii 96753
RE: Coastwise trade; Voyage to nowhere; Whale watching;
Recreational diving; Charter fishing; Registry endorsement
Dear Mr. Rosier:
Reference is made to your letter of April 2, 1992, in which
you request that we rule upon the applicability of the statutory
restriction on the coastwise transportation of passengers to
whale watching, recreational diving, and charter fishing
activities conducted in a "voyage to nowhere" context aboard a
non-coastwise qualified vessel.
FACTS:
The vessel in question was built in the United States but
has sufficient foreign ownership interests to preclude its
documentation for the coastwise trade. The Coast Guard has
documented the vessel under United States law with a registry
endorsement. It is proposed that paying passengers be taken
aboard the vessel at Maalaea Harbor, Hawaii, and proceed into
international waters. Once there, the passengers would engage in
whale watching, recreational diving, or charter fishing
activities before being returned to the same point at which they
boarded the vessel in order to disembark.
ISSUE:
Whether passengers may be taken on voyages to nowhere on a
non-coastwise-qualified vessel for purposes of whale watching,
recreational diving, or charter fishing.
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.
There are, however, particular restrictions as concerns
charter fishing operations. The Bureau of Navigation and
Steamboat Inspection (the predecessor agency to the Customs
Service in the administration of the coastwise and other
navigation laws) ruled in 1936 (Circular Letter No. 103, June 3,
1936), that the carriage of fishing parties to the high seas or
foreign waters and back to the passenger's point of embarkation,
is an engagement in coastwise trade for which proper coastwise
documentation is required. This position was subsequently
affirmed by the Customs Service with the publication of Treasury
Decision 55193(2) in 1960. Administrative rulings since that
published ruling have consistently held likewise.
HOLDING:
Following a thorough review of the facts and analysis of the
law and applicable precedents, we have determined that passengers
may be taken on a non-coastwise-qualified vessel from a coastwise
point, into international waters, and back to the same coastwise
point for the purpose of engaging in whale watching or
recreational diving activities while in international waters.
The same itinerary is not permissible, however, when the activity
engaged in is charter party fishing.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch