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HQ 113381

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March 28, 1995

VES-3-02-CO:R:IT:C 113381 GOB

CATEGORY: CARRIER

Charles M. Carroll
33 Tanza Romo c/o Adden
London NW 3, 2 UA
England

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

Dear Mr. Carroll:

This is in response to your letter dated March 24, 1995.

FACTS:

You are considering the purchase of a Dutch-registered, Dutch-built steel sailing vessel ("the vessel"). You will use the vessel as your home and as a base for kayaking instruction. You state:

For example, students would be aboard for meals (at anchor), or for classroom instruction (i.e., navigation, theory, etc.). The boat would occasionally transport up to 6 students to areas for special kayak tours (e.g., from its home port of Portland, ME to the island of Penobscot Bay, or from its winter base on the west coast of Florida to the 10,000 Islands of Florida).

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.

Customs has previously held that the sole use of a foreign sailing vessel in connection with a bona fide instructional course in sailing and navigation does not constitute coastwise trade within the meaning of 46 U.S.C. App. 289.

However, we find that the facts of this case are different from the case described supra in that in this case the individuals receiving instruction are not receiving instruction with respect to the operation or navigation of the subject vessel; they are receiving instruction with respect to a type of vessel, a kayak, which is different from the subject vessel. Accordingly, we find that this case is distinguishable from the "instructional course in sailing and navigation" case. We find that the proposed activity is violative of 46 U.S.C. App. 289.

Additionally, we find that the transportation of the individuals "to areas for special kayak tours," as described supra is violative of 46 U.S.C. App. 289 because it constitutes the transportation of passengers between coastwise points. Such transportation is not the same, nor is it substantially similar, to the situation where individuals receive training with respect to the operation and/or navigation of the vessel which they are on. Such transportation appears to be the transportation of passengers from one coastwise point to a second coastwise point where the passengers leave the vessel for kayak instruction.

We note, however, that individuals may come on board the vessel for meals or instruction provided that they are not transported on the vessel, i.e., provided that the vessel does not move (other than incidental shifting in the water).

HOLDING:

The proposed activity is violative of 46 U.S.C. App. 289 and may not be accomplished by a non-coastwise-qualified vessel.

Sincerely,

Arthur P. Schifflin
Chief

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