VES-3-19-RR:IT:EC 116494 IDL
Clare Petrich
Chair, Tacoma Events Commission
Commissioner, Port of Tacoma
1118 East D Street
Tacoma, Washington 98421
Re: Coastwise Trade; Sailing Instruction; Foreign Vessel; Passenger Vessel Services Act; 46 U.S.C. App. § 289
Dear Ms. Petrich:
This is in response to your letter, dated June 17, 2005, concerning the “Tall Ships Festival, Tacoma 2005” and the Passenger Vessel Services Act. Our ruling on this matter is set forth below.
FACTS:
The City and Harbor of Tacoma, Washington will be hosting thirty sailing vessels from around the world, as part of an event billed as the “Tall Ships Festival, Tacoma 2005” (“the event”). The event is part of the American Sail Training Association’s “Tall Ships Challenge.”
The Tacoma Events Commission, local sponsor of the event, would like to provide an opportunity for guests boarding a New Zealand-flagged sailing vessel, the R. TUCKER THOMPSON, to receive three hours of instruction in sailing and navigation techniques from the vessel’s captain and crew. The vessel will carry a maximum of forty-five guests entirely within United States territorial waters.
ISSUE:
Whether the use of a foreign-flagged vessel for sailing and navigation instruction, 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 June 19, 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 § 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; and 46 U.S.C. App. 883). Furthermore, CBP has promulgated regulations pursuant to 46 U.S.C. App.
§ 289. These regulations may be found in Title 19, Code of Federal Regulations, § 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 our interpretation of 46 U.S.C. App. § 289, CBP has long-held that a person transported on a vessel as a student in bona fide instructional courses in oceanography or sailing and navigation/seamanship, when the presence of that person is required on board the vessel as a part of his or her course or training, is not a passenger for purposes of the coastwise laws (CBP ruling letter 108166, dated February 27, 1986). This is so regardless of whether a fee is charged for the aforementioned instruction.
Accordingly, the use of the R. TUCKER THOMPSON for instruction in sailing and navigation entirely within the territorial waters of the United States would not violate the U.S. coastwise laws.
HOLDING: The use of a foreign-flagged vessel for sailing and navigation instruction, as discussed above, would not violate 46 U.S.C. App. § 289.
Sincerely,
Glen E. Vereb
Chief
Entry Procedures and Carriers Branch