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HQ 112254


August 3, 1992

VES-3-19 CO:R:IT:C 112254 JBW

CATEGORY: CARRIER

Mr. Keith Douglas
Director of Programs
The Florida National High
Adventure Sea Base
P. O. Drawer 1206
Islamorada, Florida 33036

RE: Coastwise; Passengers; Sailing School; Oceanographic Research; Educational Program; 46 U.S.C. App. 289.

Dear Mr. Douglas:

This letter is in response to your inquiry of May 18, 1992, in which you request a ruling regarding the use of a sailing vessel with a recreational endorsement in United States territorial waters.

FACTS:

In your letter, your state that the Boy Scouts of America operate a "Sea Base" to provide environmental programs for more than six-thousand young people each year. Among the programs offered is one in which Scouts are taken out on week long cruises. You state that the sailboats used in this program are provided by a local charter firm that also supplies licensed captains. You state that all of the vessels supplied have coastwise endorsements issued by the Coast Guard with the exception of the MADAM BAKADE. This vessel has a recreational endorsement and is ineligible for a coastwise endorsement because of a former foreign registration.

ISSUE:

Whether the use of a non-coastwise-qualified vessel for transportation of Boy Scouts on environmental programs would be in violation of the coastwise passenger law, 46 U.S.C. App. 289.

LAW AND ANALYSIS:

The coastwise laws 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. 883 (West Supp. 1991). Points in the United States embraced within the coastwise laws include the United States territorial waters. The territorial waters of the United States consist of the territorial sea, defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and of the internal waters of the United States, landward of the territorial sea baseline, in cases where the baseline and the coastline differ. Headquarters Ruling Letter 111275, dated November 13, 1990.

In interpreting the coastwise laws as applied to the transportation of passengers, 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 point, is considered coastwise trade subject to the coastwise laws. E.g., Headquarters Ruling Letter 110990, dated May 21, 1990. However, the transportation of passengers to the high seas or foreign waters and back to the precise point of embarkation, often called a "voyage to nowhere," is not considered coastwise trade. Id. An important corollary to this rule is that a "voyage to nowhere" assumes the passengers do not leave the vessel, even temporarily, at another United States point. Id. Furthermore, the carriage of fishing parties for hire, even if the vessel proceeds beyond territorial waters and returns to the point of the passengers' embarkation, is considered coastwise trade. Headquarters Ruling Letter 111051, dated August 16, 1990.

The Customs Regulations define "passenger" for purposes of section 289 as "any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business." See 19 CFR 4.50(b)(1992). The Customs Service has held that a person being trained or receiving instruction in the handling or navigation of a vessel, and whose presence on board the vessel is required in order to receive such training or instruction, is not a "passenger" within the coastwise laws. Accordingly, if the vessel is used only for such training, then it would not be required to have a license to engage in the coastwise trade. See Headquarters Ruling Letter 109850, dated December 27, 1988, and Headquarters Ruling Letter 109287, dated February 24, 1988.

Therefore, the sole use of a sailing vessel in connection with a bona fide instructional course in sailing and navigation with class or other instruction, as opposed to an outing, does not constitute coastwise trade within the meaning of 46 U.S.C. App. 289. We stress that all persons being carried in the vessel must be involved with the operation, navigation, or business of the vessel. Persons who are carried on board a vessel for recreational purposes, whether or not they pay a fee, would be considered "passengers," and their carriage between places in the United States or entirely within United States waters would be in violation of the coastwise laws.

The Customs Service has further held that the use of a vessel solely to engage in oceanographic research is not a use in the coastwise trade. Headquarters Ruling Letter 110443, dated September 27, 1989. We have held that the use of non-coastwise- qualified vessels to engage in oceanographic research, including the transportation of persons participating in the research (i.e. vessel crew, scientist, and students) from, to, and between research sites in United States territorial waters, whether or not the persons participating in the research temporarily leave the vessels at the research sites, would not violate the coastwise laws. Id.

From your description, the use of the MADAM BAKADE will not be for sailing instruction, nor does it appear from the facts presented that it will be used for scientific research; rather, the vessel will be used to transport the Scouts to receive education on environmental issues. Under such circumstances, the Scouts would be considered "passengers" under the statute, and any vessel transporting the Scouts would be required to have a coastwise endorsement. You should note, however, that a non- coastwise-qualified vessel may transport the Scouts on "voyages to nowhere" as described earlier in this letter.

HOLDING:

The MADAM BAKADE, a non-coastwise-qualified vessel, will be used to transport Boy Scouts for environmental education purposes. The vessel will not be used for sailing instruction, nor will it be used for scientific research. Under such circumstances, the Scouts would be considered "passengers" under the statute, and any vessel transporting the Scouts would be required to have a coastwise endorsement. However, a non- coastwise-qualified vessel may transport the Scouts on "voyages to nowhere" subject to the restrictions described in the LAW AND ANALYSIS section of this letter.

Sincerely,

B. James Fritz
Chief

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