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HQ 111796

August 8, 1991

VES-3-04/4-02/5-08 CO:R:IT:C 111796 JBW

CATEGORY: CARRIER

Janne Julsrud
Counselor
Embassy of Norway
2720 34th Street, N.W.
Washington, D.C. 20008

RE: Entry and Clearance; Cruising License; Pleasure; Government Vessels; Display Ship; Exhibition Ship; Viking Ship; 46 U.S.C. App. 104; 19 C.F.R. 4.94.

Dear Ms. Julsrud:

This letter is in response to your facsimile transmittal of July 18, 1991, in which you request that the Customs Service waive certain fees for three replica viking ships that will be arriving at ports along the east coast of the United States.

FACTS:

In commemoration of Leif Eiriksson's journey to North America one thousand years ago, three replica viking ships will be calling at ports in the United States as part of a voyage along the east coast of the United States and Canada. The voyage is sponsored by the governments of Norway and Iceland, by the Norwegian Broadcast Corporation, and by World City Discovery. You state that the purposes of the voyage are to renew and strengthen historical and cultural ties among the inhabitants of the north Atlantic coasts and to promote an increased sensitivity to our environment. The vessels will not be selling objects, raising funds, or charging admission fees to board the ships.

The GAIA set sail from Bergen on May 17, 1991, and was scheduled to arrive at Anse-aux-Meadows, Newfoundland, on August 2, 1991. Upon arriving in Newfoundland, the GAIA will be joined by her sister ships, the OSEBERG and the SAGA SIGLAR. The ships will then proceed on to St. John's, Newfoundland, Halifax, Nova Scotia, Boston, Massachusetts, Newport, Rhode Island, New York, New York, and Washington, D.C. A support ship will accompany the viking ships while in the United States. You state that two of the viking ships are privately owned and one is owned by a governmental institution.

ISSUE:

Whether fees may be waived for exhibition vessels that are calling in United States ports under the sponsorship of foreign governments as part of a good-will voyage.

LAW AND ANALYSIS:

As a general matter, all vessels arriving in the United States may be subject to a variety of statutorily mandated duties, taxes, and fees according to the ownership, operation, and use of the vessel. In its role as an administrative entity of the government of the United States, the function of the Customs Service is to interpret and implement these laws. We do not possess the power or authority to waive duties or fees unless a statutory exemption permits to do so.

United States law requires the master of any foreign vessel arriving in a United States port, whether from a foreign port or another United States port, to make an immediate report of arrival (19 U.S.C. 1433, 19 C.F.R. 4.2) and to make a vessel entry (19 U.S.C. 1435, 19 C.F.R. 4.3). Such vessels must clear when bound for a foreign port (46 U.S.C. App. 91, 19 C.F.R. 4.60) or must have a permit to proceed from one United States port to another (46 U.S.C. App. 313, 19 C.F.R. 4.87).

Title 46, United States Code Appendix, section 104 (46 U.S.C. App. 104), authorizes the issuance of cruising licenses to exempt yachts of foreign registry employed exclusively as pleasure vessels from these formal entry and clearance procedures. This section, however, limits that exemption to pleasure vessels of countries that extend reciprocal privileges to United States pleasure vessels. Countries that have satisfied this reciprocity requirement are listed in section 4.94(b) of the Customs Regulations (19 C.F.R. 4.94(b)). Pleasure vessels of Norwegian registry may be issued a cruising license. Id.

We cannot characterize the replica viking ships as pleasure vessels. The term pleasure is defined to be:

1. An enjoyable sensation or emotion; delight. 2. A source of enjoyment, gratification, or delight. 3. Amusement, diversion, or worldly enjoyment. 4. Sensual gratification or indulgence....

The American Heritage Dictionary 951 (2d Ed. 1985). While we recognize that the participants in the voyage may derive pleasure from their experiences, the purpose of the voyage and use of the vessels are not exclusively for the pleasure of the participants. The voyage enjoys the financial sponsorship of two governments and two private corporations. The goal of the voyage is, as you state, to renew and strengthen historical and cultural ties among the inhabitants of the north Atlantic coasts and to promote an increased sensitivity to our environment. This specificity of purpose is inconsistent with the use of the vessels exclusively for pleasure. We therefore determine that the replica viking ships, along with the support ships, are not eligible for a cruising license.

You mention that one of the viking ships is owned by a governmental institution. The Customs Regulations exempt from the requirements relating to report of arrival and entry:

[A]ny vessel under the complete control and management of the United States or any of its agencies, if such vessel (1) is manned wholly by members of the uniformed services of the United States, by personnel in the civil service of the United States, or both, and (2) is transporting only property of the
United States or passengers traveling on official business of the United States, or it is in ballast.

19 C.F.R. 4.5(a); see 19 U.S.C. 1441(a) (1988). The regulations further exempt vessels of any foreign nation operating under these same conditions. 19 C.F.R. 4.5(c). Clearance is not required for vessels not required to enter under 19 U.S.C. 1441. 19 C.F.R. 4.60(b)(3). From your letter and the accompanying materials, however, we do not have sufficient evidence to determine whether one of the vessels may be exempt from the entry and clearance requirements as a government vessel.

To summarize, the ships participating in the voyage will be required to enter, clear, and obtain permits to proceed. Fees will be assessed for these requirements according to the schedule published pursuant to section 4.98 of the Customs Regulations. Provided the vessels do not load commercial cargo, the vessels will not be assessed harbor maintenance fees. However, the vessels will be arriving from a North American point and will be assessed the regular tonnage tax of nine cents per net ton. 19 C.F.R. 4.20 & 4.21. Private vessels are also assessed a user fee of twenty-five dollars. 19 C.F.R. 24.22(e).

For your information, the coastwise laws of the United States generally prohibit the transportation of passengers or merchandise between points in the United States embraced within the coastwise laws in any vessel other than a United States built, owned, and documented vessel. 46 U.S.C. App. 289 (Supp. III 1985) & 46 U.S.C.A. App. 883 (West Supp. 1991). The movement between ports in the United States of the replica viking ships and support vessels, with crews, exhibition materials, equipment, and stores does not constitute coastwise trade provided that persons or goods are not laden at one coastwise point and transported to another.

HOLDING:

The replica viking ships the GAIA, the OSEBERG, and the SAGA SIGLAR, and their support vessels, are not exempt from the entry and clearance laws administered by the Customs Service. They do not qualify as pleasure vessels eligible for cruising licenses, nor do they qualify, without further evidence, as government vessels. The vessels will therefore be required to pay applicable taxes and fees, as discussed above. The movement between ports in the United States of the replica viking ships and support vessels, with crews, exhibition materials, equipment, and stores does not constitute coastwise trade provided that persons or goods are not laden at one coastwise point and transported to another.

Sincerely,

B. James Fritz
Chief

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