HQ 0109553 - Transportation of passengers between United States ports or places on a foreign-built vessel - United States International Trade Commision Rulings

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HQ 109553

July 5, 1988

VES 3-02 CO:R:P:C 109553 BEW

CATEGORY: CARRIER

Captain Tony Benado
4200 South Harbor Boulevard
Oxnard, California 93035

RE: Transportation of passengers between United States ports or places on a foreign-built vessel

Dear Captain Benado:

This is in reference to your letter of June 8, 1988, concerning the transportation of passengers for hire between Oxnard, California, and the Santa Barbara Channel Islands on a foreign built sailing vessel.

FACTS:

You state that you wish to take 6 people or less for hire, out to the Santa Barbara Channel Islands (SBCI) which lies 20 miles offshore from Oxnard, California, that you do not allow fishing as the vessel is a private yacht, and that you will be departing and returning to the same slip. You cite Customs Service Decision (C.S.D.) 79-415 as a basis for allowing you to use your vessel as proposed. You telephonically stated that the vessel would anchor approximately one mile offshore of the SBCI, where passengers would disembark the vessel to snorkel, swim and possibly walk along the shoreline at SBCI.

ISSUE:

Whether the transportation of passengers between the coast of California and the (SBCI) on a foreign-built sailing vessel for hire is a violation of the coastwise laws.

LAW ANALYSIS:

Generally, the coastwise laws (e.g., 46 U.S.C. App. 289 and 883, and 46 U.S.C. 12106 and 12110) prohibit the transportation of merchandise or passengers between points in the United States embraced within the coastwise laws in any
vessel other than a vessel built in and documented under the laws of the United States, and owned by persons who are citizens of the United States.

Under the provisions of 46 U.S.C. App. 289, no foreign vessel shall transport passengers between ports or places in the United States, either directly or by way of a foreign port. The penalty for violating this section of the law is $200 for each passenger so transported and landed.

In interpreting the coastwise laws as applied to the transportation of passengers, we have ruled that the carriage of passengers entirely within territorial waters, even though they disembark at their point of embarkation and the vessel touches no other point, is considered coastwise trade subject to the coastwise laws. The transportation of passengers to the high seas or foreign waters and back to the point of embarkation, often called a "voyage to nowhere," is not considered coastwise trade, assuming the passengers do not go ashore, even temporarily, at another coastwise point. We have ruled that the carriage of fishing parties for hire, even if the vessel proceeds beyond territorial waters and returns to the point of the passengers' original embarkation, is considered coastwise trade subject to the coastwise laws. The territorial waters of the United States consist of the territorial sea, defined as the belt, 3 nautical miles wide, adjacent to the coast of the United States and seaward of the territorial sea baseline.

The vessel under consideration, as a foreign-built vessel, would be precluded from engaging in the coastwise trade. The vessel could be used to transport passengers from a point in the United States (e.g. Oxnard, California) to the high seas beyond territorial waters and back to the same point, assuming that the vessel touched at no other coastwise point during the transportation and was not engaged in charter party fishing. However, the vessel would be prohibited from carrying passengers on such a voyage if the passengers disembarked the vessel at the SBCI, another coastwise port subject to the coastwise laws of the United States. This is so because on such a voyage the passengers would be transported between ports or places in the United States (see 46 U.S.C. 289). That is, the passengers would be transported from a place in territorial waters of Oxnard, California, to a point or place in the territorial waters of the SBCI, and they would be transported from SBCI to Oxnard.

You cite C.S.D. 79-415, in your request. That decision is distinguished from the circumstances in your case because the the vessel in that case proceeded to a point on the high seas and returned to its place of embarkation without landing passengers at a second point in the United States embraced within the coastwise laws.

HOLDING:

The transportation by a non-coastwise-qualified vessel, such as your foreign-built sailing vessel, of passengers for hire between coastwise points, which includes points or places in the territorial waters of SBCL, is a violation of the coastwise laws.

Sincerely,

B. James Fritz

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