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HQ 112931


October 28, 1993

VES-3-02 CO:R:IT:C 112931 GOB

CATEGORY: CARRIER

Mr. Mark Ravitz
Mark Ravitz Art & Design
200 Seventh Avenue
Brooklyn, New York 11215

RE: Coastwise trade; transportation of merchandise; 46 U.S.C. App. 883; transportation of passengers; 46 U.S.C. App. 289; Water circus

Dear Mr. Ravitz:

This is in response to your letter dated October 18, 1993.

FACTS:

You ask whether certain activity is permissible with a foreign-flag vessel. You describe the activity as follows:

...a touring harbor show. It is in essence a traveling water circus, with its largest single element being a coastal freighter 250' to 300' long...I will not be taking on any passengers like a cruise ship, and I will not be unloading any cargo for sale from port to port. The coastal freighter will function as a large scenic prop and carry my "show (speed boats, inflatables, `zodiac' boats, jet skis, assorted scenic prop scale boats, etc.)" elements from harbor to harbor, as a normal touring show, except my show is on the water. The freighter, in a sense, acts as my theater house and the water acts as my stage surface. The performance would take place on the water between the vessel (which is moored 200' from shore) and land, where the public would be standing or seated.

ISSUE:

Whether the above-described activity using a foreign-flag vessel is permissible under the coastwise laws, i.e., 46 U.S.C. App. 289 and 46 U.S.C. App. 883.

LAW AND ANALYSIS:

Generally, the coastwise laws prohibit the transportation of passengers or merchandise between points in the United States
embraced within the coastwise laws in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States.

The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. App. 289 and 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 a penalty of $200 for each passenger so transported and landed.

46 U.S.C. App. 883, the coastwise merchandise statute often called the "Jones Act", provides in part that no merchandise shall be transported between points in the United States embraced within the coastwise laws, either directly or via a foreign port, or for any part of the transportation, in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States.

The coastwise laws generally apply to points in the territorial sea, which is 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.

Section 4.50(b), Customs Regulations (19 CFR 4.50(b)) states:

A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business.

Assuming that all of the individuals aboard the vessel are employed in connection with the traveling water circus or the vessel, the vessel would not be engaged in the transportation of passengers. Thus, the proposed activity by a foreign-flag vessel would not be violative of 46 U.S.C. App. 289, the coastwise passenger statute. However, if the vessel transports any individuals who are not employed in connection with the traveling water circus or the vessel, the transportation of those individuals by a foreign-flag vessel would constitute a violation of 19 U.S.C. 289.

We find that the proposed activity by a foreign-flag or non- coastwise qualified vessel would be violative of 46 U.S.C. App. 883, the coastwise merchandise statute. A violation of 46 U.S.C. App. 883 occurs with respect to a foreign-flag or non-coastwise qualified vessel when a lading occurs at one coastwise point and an unlading occurs at another coastwise point. A lading and unlading would occur in the situation which you describe. A lading would occur when the various materials (speed boats, inflatables, etc.)
are put onto the vessel and an unlading would occur when those materials are taken off the vessel in the harbor.

HOLDING:

The activity involved in the touring harbor show or traveling water circus, as described supra, by a foreign-flag or non- coastwise qualified vessel would be violative of 46 U.S.C. App. 883. The activity would not be violative of 46 U.S.C. App. 289, provided that all of the individuals transported are employed in connection with the traveling water circus or the vessel.

Sincerely,

Arthur P. Schifflin
Chief

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