HQ 0111843 - Applicability of the coastwise laws to the use of a non- coastwise-qualified sailboat in the territorial waters of the United States as a mobile medical office. - United States International Trade Commision Rulings

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HQ 111843

January 9, 1992

VES-3-15/VES-3-21 CO:R:IT:C 111843 BEW

CATEGORY: CARRIER

Dr. Michael S. Hefferman
620 E. Market
Rockport, Texas 78382

RE: Applicability of the coastwise laws to the use of a non- coastwise-qualified sailboat in the territorial waters of the United States as a mobile medical office.

Dear Dr. Hefferman:

This is in reference to your affidavit dated October 3, 1991, in which you requested a ruling on the applicability of the coastwise laws to the use of a non-coastwise-qualified sailboat as a mobile office for the purpose of providing professional psychological services at dockside.

FACTS:

You state the subject vessel will be used at two or three ports of call. You state the vessel will be used as a mobile office. You state that the vessel will only be underway when it is moved to the next place of business.

ISSUE:

May a non-coastwise-qualified sailboat be used as a mobile medical office in the territorial waters of the United States without violating the coastwise laws?

LAW AND 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.

Pursuant to 46 U.S.C. 12106 and 12110 and their predecessors (46 U.S.C. 65i and 65m and, before them, 46 U.S.C. 11) and consistent with 46 U.S.C. App. 883, the coastwise merchandise law, the Customs Service has consistently held that the prohibition in 46 U.S.C. App. 289, applies to all non- coastwise-qualified vessels. Non-coastwise-qualified vessels include any vessel other than a vessel built in, properly documented under the laws of, owned by citizens of the United States, and never sold foreign with certain exceptions (46 U.S.C. 12106(a)(2)(B) a 19 CFR 4.80(a)(2) and (3)).

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.

A point in United States territorial waters is considered a point in the United States embraced within the coastwise laws but a point beyond those waters, even if it is within the United States Exclusive Economic Zone (EEZ), is not considered to be such a point, with certain exceptions inapplicable in this context (see, e.g., the Outer Continental Shelf Lands Act of 1958, as amended; 43 U.S.C. 1333, and the amendments to 46 U.S.C. App. 883 regarding the transportation of valueless or dredged material effected by Public Law 100-329).

The territorial waters of the United States consist of the belt, 3 nautical miles wide, adjacent to the coast of the United States and seaward of the territorial sea baseline. The recent Presidential Proclamation (dated December 27, 1988) proclaiming a 12 nautical mile territorial sea extended the jurisdiction of the United States only for international purposes and did not extend or change existing federal and state laws. The territorial waters of the United States continue to be 3 nautical miles wide, for purposes of the applicability of the coastwise laws.

The vessel under consideration, as a non-coastwise- qualified, would be precluded from engaging in the coastwise trade. Under the circumstances stated above, you may not use the vessel in the coastwise trade if, as is true in this case, it is not qualified to engage in the coastwise trade. As noted above, 46 U.S.C. App. 289, prohibits the transportation between points in the United States of passengers in a non-coastwise-qualified vessel.

"Passenger," for purposes of this provision, 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 Customs Service has consistently held that the use of a non-coastwise-qualified vessel as a permanently moored facility does not violate the coastwise laws, or any other law administered by the Customs Service, provided that the vessel remains stationary. Customs also has held that if the vessel is being loaded or unloaded and must be moved to another location because of stress of weather or other reason involving the vessel's safety, subsequently is returned to the same point to continue its loading or unloading, and neither loads nor unloads merchandise at any other point in the United States, the coastwise laws are not violated.

Although the vessel will not be engaging in coastwise trade while in operation as a stationary "mobile medical office", the point should be made that by virtue of its being anchored within territorial waters, the vessel itself will become a coastwise point. The practical effect of this fact is that any vessel moving merchandise or passengers between the moored sailboat and another coastwise point (in either direction), must itself be documented for the coastwise trade.

Under the circumstances stated above, an undocumented U.S.- built vessel not qualified to engage in the coastwise trade can be used as a permanently moored "medial office", without violating the statute. No law or regulation administered by the United States Customs Service would preclude the use of the permanently moored sailboat as a medical office.

HOLDING:

A non-coastwise-qualified sailboat may be used as a permanently moored "medical office within the territorial waters of the U.S. without violating the coastwise laws of the United States.

Sincerely,

B. James Fritz
Chief

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