HQ 0111490 - Coastwise Trade; Territorial Sea; Passengers; Cruises to Nowhere; 46 U.S.C. App. 289 - United States International Trade Commision Rulings

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HQ 111490

February 27, 1991

VES-3-02-CO:R:IT:C 111490 GEV

CATEGORY: CARRIER

Mr. Anders E. Albertsen
Marstal Ltd.
59 Bow Street
Post Office Box 4280
Portsmouth, New Hampshire 03802-4280

RE: Coastwise Trade; Territorial Sea; Passengers; Cruises to Nowhere; 46 U.S.C. App. 289

Dear Mr. Albertsen:

This is in response to your letter dated January 24, 1991, enclosing a copy of a navigational chart, regarding cruises to nowhere from New York City Harbor. You request a formal ruling with regard to territorial waters. Our ruling on this matter is set forth below.

FACTS:

The MS/V ALTA is a Norwegian-built vessel currently registered in the British Cayman Islands but in the process of being reregistered in San Lorenzo, Honduras. The vessel's owner, Marstal Ltd., is contemplating using the vessel for day trip passenger excursions from the North Cove Yacht Harbor in lower Manhattan to a point beyond U.S. territorial waters and return to the point of the passengers embarkation (i.e., a "cruise to nowhere").

In preparation for the above operation, Marstal Ltd. has attempted to determine the distance at which the subject vessel would be considered to have proceeded beyond U.S. territorial waters. Upon contacting the local U.S. Coast Guard authorities in New York, Marstal Ltd. has been provided a navigational chart of the New York Harbor area (chart no. 12326) upon which exists a demarcation line labelled "Territorial Sea" (highlighted as the letter "A") as well as a three mile line (highlighted as the letter "B"). Marstal Ltd. requests that we determine which of the aforementioned lines represents the outer boundary of the U.S. territorial sea for purposes of the subject vessel operating on valid cruises to nowhere.

ISSUE:

Whether line "A" or line "B" highlighted on the navigational chart described above represents the outer boundary of the U.S. territorial sea beyond which the subject vessel must proceed in order to be engaged in a valid "voyage to nowhere" not in violation of 46 U.S.C. App. 289.

LAW AND ANALYSIS:

Title 46, United States Code Appendix, section 883 (46 U.S.C. App. 883), the merchandise coastwise law often called the "Jones Act", provides in part, that no merchandise shall be transported between points in the United States embraced within the coastwise laws, either directly or via a foreign port, or for any part of the transportation, 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 (i.e., a coastwise-qualified vessel). Section 289 of title 46 (46 U.S.C. App. 289, the passenger coastwise law which appears to be more relevant to your concerns) as interpreted by the Customs Service, prohibits the transportation of passengers between points in the United States embraced within the coastwise laws, either directly or by way of a foreign port, in a non-coastwise-qualified vessel (see above). For purposes of section 289, "passenger" is defined as "... any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business." (19 CFR 4.50(b))

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 the coastline differ.

In its administration of 46 U.S.C. App. 289, 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 coastwise point, is considered coastwise trade subject to coastwise laws. However, the transportation of passengers to the high seas (i.e., beyond U.S. territorial 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. It should be noted that the carriage of fishing parties for hire, even if the vessel proceeds beyond territorial waters and returns to the point of the passenger's embarkation, is considered coastwise trade.

Upon examining chart no. 12326, it is apparent that line "A" (drawn between Rockaway Point and Sandy Hook) is the baseline of the U.S. territorial sea. The waters landward of line "A" represent internal U.S. waters. Accordingly, line "B", which is drawn to represent that distance three nautical miles seaward of the territorial sea baseline, is the line past which the subject vessel must proceed in order to be engaged in a valid "voyage to nowhere."

HOLDING:

Line "B" highlighted on the navigational chart described above represents the outer boundary of the U.S. territorial sea beyond which the subject vessel must proceed in order to be engaged in a valid "voyage to nowhere" not in violation of 46 U.S.C. App. 289.

Sincerely,

B. James Fritz

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