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HQ 113379

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March 23, 1995

VES-3-02-CO:R:IT:C 113379 GOB

CATEGORY: CARRIER

Calvin R. Parsons
Parsons Welding
23 Pebbly Beach Road
Avalon, CA 90704

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

Dear Mr. Parsons:

This is in response to your letter dated March 9, 1995.

FACTS:

You request a "waiver" to the three mile voyage to nowhere with respect to a foreign-built submarine which would make dives at Catalina Island, one and one-quarter miles east of the city of Avalon and 150 yards offshore.

ISSUE:

Whether the proposed activity is violative of 46 U.S.C. App. 289.

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. A vessel that is built in, documented under the laws of, and owned by citizens of the United States, and which obtains a coastwise endorsement from the U.S. Coast Guard, is referred to as "coastwise qualified."

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.

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.

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

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.

In interpreting the coastwise laws as applied to the transportation of passengers, the Customs Service has ruled that the carriage of passengers entirely within territorial waters, which include the internal waterways of the United States, even though the passengers disembark at their point of embarkation and the vessel touches no other point, is considered coastwise trade subject to the coastwise laws. However, the transportation of passengers to the high seas or foreign 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. In such a situation, the vessel may not stop at a point in territorial waters other than the place where the passengers boarded the vessel.

The first of these positions, regarding transportation of passengers entirely within territorial waters on a voyage in which they embark and disembark at the same coastwise point, is based on a 1900 decision, Treasury Decision 22275. Our rulings have consistently followed this position.

The second of these positions, regarding the transportation of passengers from a point in the United States to the high seas or foreign waters and back to the same point, is based on a 1912 opinion of the Attorney General (29 Opinions of the Attorney General 318). We have consistently followed this position as well.

The subject vessel, which is not coastwise-qualified, may not transport passengers between coastwise points. If the vessel seeks to engage in a "voyage to nowhere," as described supra, it may not stop at a point in territorial waters other than the place where the passengers boarded the vessel. The "voyage to nowhere" is strictly limited to a voyage to the high seas or foreign waters.

HOLDING:

The proposed activity is violative of 46 U.S.C. App. 289. The subject vessel, which is not coastwise-qualified, may not transport passengers between coastwise points. If the vessel seeks to engage in a "voyage to nowhere," as described supra, it may not stop at a point in territorial waters other than the place where the passengers boarded the vessel. The "voyage to nowhere" is strictly limited to a voyage to the high seas or foreign waters.

Sincerely,

Arthur P. Schifflin
Chief

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