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HQ 113277

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November 23, 1994

VES-3-CO:R:IT:C 113277 GEV

CATEGORY: CARRIER

Thomas Averna
Owner
Deer Harbor Charters
Post Office Box 303
Deer Harbor, Washington 98243

RE: Coastwise Trade; Sailing School; 46 U.S.C. App. ? 289

Dear Mr. Averna:

This is in response to your letter dated November 14, 1994, requesting a ruling regarding your proposed use of a foreign-built vessel. Our ruling on this matter is set forth below.

FACTS:

Deer Harbor Charters is interested in purchasing a New Zealand-built, 47' sailboat. The vessel will be operated out of Orcas Island in the San Juan Islands of Washington State. It will be used for cruises lasting approximately five to seven hours each with the majority of that time devoted to sail training. In addition to the sail training, the cruises will also be used to educate those on board regarding the ecology and natural history of the area while focusing on the orca whales that reside there. The vessel will be operated by a licensed captain who is a trained naturalist as well as a sailing instructor.

ISSUE:

Whether the use of a foreign-built vessel for sail training constitutes a use in the coastwise trade in violation of 46 U.S.C. App. ? 289.

LAW AND ANALYSIS:

Title 46, United States Code Appendix, ? 289 (the passenger coastwise law), as interpreted by the Customs Service, prohibits the transportation of passengers between points embraced within the coastwise laws, either directly or by way of a foreign port, in any vessel other than a vessel built in, documented under the
laws of, and owned by citizens of the United States. Pursuant to "passenger," for purposes of this provision, is defined as "...any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business."

In our interpretation of ? 289, we have long-held that a person transported on a vessel as a student in courses such as oceanography or sailing and seamanship, when the presence of that person is required on board the vessel as a part of his or her course or training, is not a passenger, for purposes of the coastwise laws. This is so regardless of whether a fee is charged for the aforementioned instruction. Accordingly, the use of the foreign-built vessel as described above is not a use in the coastwise trade in violation of 46 U.S.C. App. ? 289.

HOLDING:

The use of a foreign-built vessel for sail training is not considered a use in the coastwise trade in violation of 46 U.S.C. App. ? 289.

Sincerely,

Arthur P. Schifflin

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