HQ 0113089 - Coastwise trade; foreign-flag vessel; gambling; voyage-to- nowhere; ferried passenger to high seas on non-coastwise- qualified vessels and seaplanes - United States International Trade Commision Rulings

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HQ 113089

August 17, 1994

VES-3 CO:R:IT:C 113089 BEW

CATEGORY: CARRIER

Peter S. Herrick, Esquire
Attorney at Law
222 S. W. 15th Road
Miami, Florida 33129

RE: Coastwise trade; foreign-flag vessel; gambling; voyage-to- nowhere; ferried passenger to high seas on non-coastwise- qualified vessels and seaplanes

Dear Mr. Herrick:

This is reference to your letter of April 20, 1994, in which you request a ruling as to whether the transportation of passengers on seaplanes and other vessels from the shore to a casino vessel located beyond the three-mile limit is a violation of the coastwise laws.

FACTS:

You state that Key West Casino, Inc., operates a foreign flag vessel from Key West, Florida, on a voyage-to-nowhere, which does not violate 46 U.S.C. App. 289. You state that after the vessel is beyond the 3-mile limit (the territorial waters), it operates as a gambling casino while on the high seas. You state that the "voyage-to-nowhere" generally lasts from 6 p.m. to 12 p.m. The foreign-flag casino vessel returns to Key West where the passengers disembark.

You further state that while the foreign-flag vessel is on the high seas and operating as a casino, other vessels and seaplanes will bring "customers" from the United States to the casino vessel. Prior to the time that the casino vessel returns to the United States, the customers (passengers) who board the casino vessel while she is at sea, will leave the vessel and return to the United States on the ferrying vessels and seaplanes where they will disembark at the point of embarkation.

ISSUE:

Whether the use of seaplanes and other vessels to ferry passengers from the shore to a foreign-flag casino vessel which is located outside of the 3-mile U.S. territorial sea constitutes a violation of 46 U.S.C. App. 289. 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.

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." (Section 4.50(b), Customs Regulations.) Section 4.80a, Customs Regulations (19 CFR 4.80a) is interpretive of section 289.

In its administration of 46 U.S.C. App. 289, 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 coastwise point, is considered coastwise trade subject to coastwise laws. However, the transportation of passengers to the high seas (i.e., beyond U.S. territorial waters) and back to the point of embarkation, assuming the passengers do not go ashore, even temporarily, at another United States point, often called a "voyage to nowhere", is not considered coastwise trade. It should be noted that the carriage of fishing parties for hire, even if the vessel proceeds beyond territorial waters and returns to the point of the passenger's embarkation, is considered coastwise trade.

In interpreting the coastwise laws, Customs has ruled that a point in United States territorial waters is considered a point embraced within the coastwise laws. The coastwise laws generally apply to points in the territorial sea, defined as the belt, three (3) 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.
In the subject case, the use of the foreign-flag casino vessel to transport passengers on a voyage-to-nowhere is not a violation of 46 U.S.C. App. 289.

It is stated that while the said vessel is on a voyage-to- nowhere, other vessels and seaplanes would be used to ferry customers (passengers) from a coastwise point to the casino vessel's location on the high seas, and that these passengers are returned to the shore on the same vessels and seaplanes. With respect to the these vessels and seaplanes, the transportation of passengers on these vessels would not be in violation of section 289. However, these vessels and seaplanes are subject to the entry and clearance requirements provided under the Customs laws and regulations.

HOLDING:

The use of non-coastwise-qualified vessels, other than the foreign-flag casino vessel, and seaplanes to ferry passengers from the shore to a foreign-flag casino vessel which is outside of the 3-mile U.S. territorial sea would not constitute a violation of 46 U.S.C. App. 289.

Sincerely,

Arthur P. Schifflin
Chief

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