HQ 0112799 - Coastwise Trade; Passengers; 46 U.S.C. App. 289 - United States International Trade Commision Rulings

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HQ 112799

July 13, 1993

VES-3-06/07-CO:R:IT:C 112799 GEV

CATEGORY: CARRIER

Alan Freedman
Manager, Marine Operations
Crown Cruise Line
800 Douglas Road, Suite 700
Coral Gables, Florida 33134

RE: Coastwise Trade; Passengers; 46 U.S.C. App. 289

Dear Mr. Freedman:

This is in response to your letter dated July 9, 1993, requesting a ruling regarding the proposed use of your vessel to host a Republican fund raiser. Our ruling on this matter is set forth below.

FACTS:

The CROWN MONARCH is a foreign-built, Panamanian-flag passenger cruise vessel owned by Crown Cruise Line of Coral Gables, Florida. The vessel can accommodate 530 passengers and has a crew of 215. It will depart New York on July 28, 1993, following debarkation for repositioning to Alexandria, Virginia, from where it will commence a seven week charter operation on July 31, 1993.

Prior to commencing the aforementioned charter operation, Didion World Travel proposes to host a Republican Party fund raiser aboard the vessel on July 30, 1993. Due to the Woodrow Wilson Bridge opening restrictions, the vessel must anchor below the bridge at Mt. Vernon, Virginia, to await clearance for passage to Alexandria. In an effort to coordinate the bridge restrictions with the fund raising event, it is proposed to transport the event's participants from the shore at Mt. Vernon to the vessel while it is at anchor in the Potomac River awaiting clearance of the bridge. The ferrying of these passengers from the shore to the vessel at anchor, as opposed to having them board the vessel directly from shore, is necessary in view of the fact that although a finger pier is present at Mt. Vernon, neither the structure nor the depth of water will permit the CROWN MONARCH (which has a maximum draft of 19 feet) to dock at that location. The ferrying is to be done by the CROWN MONARCH's- 2 -
two 80-passenger U.S. Coast Guard-approved tenders. Upon boarding the passengers at midstream the CROWN MONARCH will then transport the passengers up the Potomac River to Alexandria when the Woodrow Wilson Bridge restrictions are lifted.

ISSUE:

Whether the ferrying of passengers by tender vessels of a foreign-flag, foreign-built cruise vessel from a coastwise point on shore to the cruise vessel's midstream point of anchor in U.S. territorial waters, and the subsequent transportation of those passengers from the point of anchor to a second coastwise point constitutes a violation of 46 U.S.C. App. 289.

LAW AND ANALYSIS:

Section 289 of title 46 (46 U.S.C. App. 289, the passenger coastwise law) 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 (i.e., any vessel other than one that is built in and documented under the laws of the United States and owned by persons who are citizens of the United States). 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)) Carriage for hire is not an element of this definition.

The coastwise laws generally apply to points in the U.S. 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. Points within the same harbor are also embraced within the coastwise laws.

In regard to the use of a non-coastwise-qualified launch or tender vessel to transport passengers from a coastwise point on shore to a passenger vessel located within U.S. territorial waters, it is Customs position that no violation of the coastwise laws would occur, provided such launch/tender vessel arrives in U.S. territorial waters on board the cruise vessel, is used solely to carry the passengers between the shore and the cruise vessel and back again, is used solely in such carriage where the District Director of Customs is satisfied that shoreside docking facilities are either inadequate or non-existent, and the launch/tender vessel departs U.S. territorial waters on board the cruise vessel (Headquarters Rulings 106114, dated April 7, 1983; and 109025, dated August 20, 1987).

Accordingly, the participants in the Republican fund raiser in question are passengers as defined in 4.50(b), Customs Regulations (19 CFR 4.50(b)) for purposes of 46 U.S.C. App. 289. Furthermore, the proposed ferrying of these passengers by tender vessels of the CROWN MONARCH from a point on shore at Mt. Vernon to the CROWN MONARCH's point of anchor in the Potomac River is permitted provided the above criterion specified in Headquarters Ruling 109025 are met. In this regard we note that both the existing dock facilities and water depth at Mt. Vernon would prevent the CROWN MONARCH from embarking passengers directly from shore. We further note, however, that the subsequent transportation of the passengers in question by the CROWN MONARCH from one coastwise point (the point of anchor in the Potomac River) to a second coastwise point (Alexandria) constitutes an engagement in the coastwise trade in violation of 46 U.S.C. App. 289.

HOLDING:

The ferrying of passengers by tender vessels of a foreign- flag, foreign-built cruise vessel from a coastwise point on shore to the cruise vessel's midstream point of anchor in U.S. territorial waters does not constitute a violation of 46 U.S.C. App. 289, provided such tender vessels arrive in U.S. territorial waters on board the cruise vessel, are used solely to carry the passengers between the shore and the cruise vessel and back again, are used solely in such carriage where the District Director of Customs is satisfied that shoreside docking facilities are either inadequate or non-existent, and the tender vessels depart U.S. territorial waters on board the cruise vessel. However, the subsequent transportation of those passengers on board the foreign- flag, foreign-built cruise vessel from the point of anchor in U.S. territorial waters to a second coastwise point does constitute a violation of 46 U.S.C. App. 289.

Sincerely,

Acting Chief

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