HQ 0113102 - Coastwise Trade; Voyage-to-Nowhere; Stationary Platform; Guam; 46 U.S.C. App. 289 - United States International Trade Commision Rulings

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HQ 113102

May 13, 1994

VES-3-CO:R:IT:C 113102 GEV

CATEGORY: CARRIER

Samuel J. Cohen, Esq.
Zamsky & Cohen
Suite 501, Bank of Guam Building
111 Chalan Santo Papa
Agana, Guam 96910

RE: Coastwise Trade; Voyage-to-Nowhere; Stationary Platform; Guam; 46 U.S.C. App. 289

Dear Mr. Cohen:

This is in response to your letter dated May 12, 1994, enclosing your letter to the District Director, U.S. Customs Service, Honolulu, Hawaii, dated April 25, 1994. You request a ruling regarding the application of 46 U.S.C. App. 289 to the operation of your client's vessel, the M/V SEA PRINCESS. The ruling you seek is set forth below.

FACTS:

The M/V SEA PRINCESS is a foreign-built and documented vessel operating out of Apra Harbor, Guam. The vessel engages in the transportation of passengers on various cruises some of which constitute valid voyages-to-nowhere and therefore do not violate 46 U.S.C. App. 289. However, Customs has recently assessed a penalty against the vessel owners in view of the fact that one of the cruises offered violates the aforementioned statute. This particular cruise embarks passengers in Apra Harbor, proceeds to and touches the three-mile limit of the U.S. territorial waters, then re-enters Apra Harbor and moors to two buoys approximately 1/2 mile from the passengers' point of embarkation. At this location passengers get off the M/V SEA PRINCESS onto waiting jet skis and power boats for associated recreational water sports, eventually returning to the M/V SEA PRINCESS. Typically, the M/V SEA PRINCESS remains moored for about three hours then gets underway again to return to the passengers' point of embarkation where they disembark.

Although the owners of the M/V SEA PRINCESS will, in a separate correspondence, contest Customs penalty assessment on the cruise described above, in an effort to prevent future violations of 46 U.S.C. App. 289 in the continued use of the vessel in Apra Harbor, Customs is requested to rule whether the following two scenarios are permissible under the passenger coastwise law.

1. Beginning any voyage of the M/V SEA PRINCESS from the mooring and ending the voyage at the same place. It is proposed to use a U.S.-flagged and built vessel to ferry passengers from the dock to the M/V SEA PRINCESS moored at the buoy in the middle of Apra Harbor. Thereafter, the M/V SEA PRINCESS will transport these passengers beyond the 3-mile U.S. territorial sea and return to the mooring buoy. After returning to the mooring buoy, the passengers will then be permitted to use the M/V SEA PRINCESS as a platform for engaging in water sports and activities for 3-5 hours. After finishing such water sports and activities, the passengers will be returned to shore by the use of a U.S.-flagged and built vessel as a ferry.

2. Use of the M/V SEA PRINCESS as a mere staging area for water sports and activities. To do this, U.S.-flagged and built vessels would transport the passengers from the dock to the M/V SEA PRINCESS which would be moored at a mooring buoy inside Apra Harbor and would be completely anchored at all times. Thereafter, the passengers would be free for the next 3-5 hours to engage in water sports and activities. Upon completion of such water sports and activities, the passengers would thereafter be ferried on a U.S.-flagged and built vessel from the stationary M/V SEA PRINCESS back to the dock.

ISSUES:

1. Whether the use of a foreign-built, foreign-flagged vessel to transport passengers from a coastwise point within a harbor to a point beyond the 3-mile U.S. territorial sea and returning to the same coastwise point where they will use the vessel as a platform for water sports prior to returning to shore on a U.S.-flagged and built vessel constitutes a violation of
46 U.S.C. App. 289.

2. Whether the use of a foreign-built, foreign-flagged vessel solely as a stationary staging area for water sports whereby the vessel would remain anchored at all times within a harbor within the 3-mile U.S. territorial sea with passengers being ferried from shore to the vessel by a U.S.-flagged and built vessel constitutes a violation of 46 U.S.C. App. 289.

LAW AND ANALYSIS:

Title 46, United States Code Appendix, 289 (46 U.S.C. App. 289, the passenger coastwise law), 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).

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. Furthermore, the coastwise laws as applicable to Guam pursuant to 46 U.S.C. 877.

In regard to the first scenario under consideration, the use of the M/V SEA PRINCESS in transporting passengers from their point of embarkation in Apra Harbor to a point beyond the 3-mile U.S. territorial sea and returning to the point of embarkation to disembark, without intervening stops, constitutes a voyage-to- nowhere which, pursuant to a 1912 opinion of the Attorney General (29 O.A.G. 318 (1912)), does not constitute a violation of 46 U.S.C. App. 289. The fact that the passengers' point of embarkation and disembarkation for the M/V SEA PRINCESS is the same point and happens to be at a location within the harbor and not on shore does not negate the validity of a valid voyage-to-nowhere.

In the second scenario the use of the M/V SEA PRINCESS as a stationary staging area is also not a violation of 46 U.S.C. App. 289. It is stated that during the period in which the vessel would be used for water sports by the passengers ferried from shore to its location within Apra Harbor, it would be "...completely anchored at all times..." (See counsel's April 25, 1994, letter at p. 3) Accordingly, the M/V SEA PRINCESS cannot be said to be transporting passengers between coastwise points.

We note that both scenarios discussed above fail to give rise to a violation of 46 U.S.C. App. 289 with respect to the M/V SEA PRINCESS in view of the fact that the vessel is not involved in the transportation of passengers between coastwise points. With respect to the vessels ferrying passengers from shore to the M/V SEA PRINCESS' mooring point within Apra Harbor, such vessels are transporting passengers between coastwise points and therefore must be coastwise-qualified (i.e., U.S.-built, owned and documented). It appears from the information provided that this is in fact the case.

HOLDINGS:

1. The use of a foreign-built, foreign-flagged vessel to transport passengers from a coastwise point within a harbor to a point beyond the 3-mile U.S. territorial sea and returning to the same coastwise point where they will use the vessel as a platform for water sports prior to returning to shore on a U.S.-flagged and built vessel does not constitute a violation of 46 U.S.C. App. 289.

2. The use of a foreign-built, foreign-flagged vessel solely as stationary staging area for water sports whereby the vessel would remain anchored at all times within the 3-mile U.S. territorial sea with passengers being ferried from shore to the vessel by a U.S.-flagged and built vessel does not constitute a violation of 46 U.S.C. App. 289.

Sincerely,

Arthur P. Schifflin

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