HQ 0112016 - Applicability of the coastwise laws to the use of a ferryboat as a moored floating restaurant; SAN DIEGO 231278. - United States International Trade Commision Rulings

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HQ 112016

December 24, 1991

VES-3-04 CO:R:IT:C 112016 MLR

CATEGORY: CARRIER

Michelle A. Warner
New England Marine Documentation Service
1070 Marina Village Parkway
Suite 204
Alameda, CA 94501

RE: Applicability of the coastwise laws to the use of a ferryboat as a moored floating restaurant; SAN DIEGO 231278.

Dear Ms. Warner:

Reference is made to your letter of December 4, 1991, in which you seek advice as to the proposed operation of a restaurant on a moored ferryboat.

FACTS:

It is anticipated that you will operate a floating restaurant aboard a 190 foot ferryboat, built in 1931. The vessel will be moored to pilings in the Sacramento, California, area. The vessel does not have any power, but possibly will at a later date. The vessel will not carry passengers for hire, nor will it be moved except for maintenance. The New England Marine Documentation Service is seeking the redocumentation of the vessel by the U.S. Coast Guard at the port of San Francisco, California, and the endorsement of the U.S. Customs Service.

ISSUE:

Are there any restrictions imposed by the U.S. Customs laws on the use of a ferryboat as a permanently moored restaurant in the territorial waters of the United States.

LAW AND ANALYSIS:

Generally, the laws referred to as 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 by any vessel other than a vessel built in, properly documented under the laws of, and owned by citizens of the United States (i.e., a coastwise-qualified vessel). The passenger coastwise law, 46 U.S.C. App. 289, 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 penalty of $200 for each passenger so transported and landed.

For purposes of the coastwise laws, a vessel "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)).

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.

Points in the United States embraced within the coastwise laws include points in the territorial waters of the United States (defined as the belt, three nautical miles wide, adjacent to the coast of the United States and seaward of the territorial sea baseline) and points located in internal waters (those waters landward of the territorial sea baseline, in cases where the baseline and the coastline differ).

The key, of course, is the provision of transportation between coastwise points. No law or regulation administered by the United States Customs Service would preclude the use of the subject vessel as a permanently moored restaurant, so long as the vessel remains in a stationary position.

It is not stated whether the ferryboat is to be moored dockside, or out in a harbor, or otherwise. Please be advised that although the ferryboat will not be in use in the coastwise trade, if it is necessary to transport persons or merchandise to the restaurant via boat from a coastwise point, the transporting vessel must be coastwise-qualified. This is because the restaurant itself would be considered a coastwise point by virtue of its location within territorial waters.

HOLDING:

The use of a ferryboat to house a permanently moored restaurant facility within the U.S. territorial waters is not prohibited under the coastwise laws administered by the U.S. Customs Service.

Sincerely,

B. James Fritz

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