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HQ H025842

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April 17, 2008

VES-3-02-OT:RR:BSTC:CCI H025842 JLB

CATEGORY: CARRIER

Captain Michael M. Lever
President
Nautilus Explorer
P.O. Box 97182 RMPO
Richmond, BC V6X 8H3
Canada

RE: Coastwise Transportation; 46 U.S.C. § 55103

Dear Captain Lever:

This letter is in response to your correspondence dated April 7, 2008, in which you request a ruling on whether the coastwise transportation of the individuals mentioned therein aboard the NAUTILUS EXPLORER constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows.

FACTS

Icarus Aviation Ltd., doing business as Lever Diving, owns and operates the NAUTILUS EXPLORER (“the vessel”), a 116-foot, Canadian-flagged passenger diveboat. The vessel will embark twenty-four passengers on May 11, 2008, at Ensenada, Mexico for an eight-day dive trip. All the passengers will then disembark in Santa Barbara, California on May 19, 2008.

ISSUE

Whether the use of a non-coastwise-qualified vessel in the voyage described above constitutes an engagement in the coastwise trade in violation of 46 U.S.C. § 55103?

LAW AND ANALYSIS

The Passenger Vessel Services Act, former 46 U.S.C. App. § 289 recodified as 46 U.S.C. § 55103, pursuant to P.L. 109-304 (October 6, 2006), states that a vessel shall not transport passengers “between ports or places in the United States to which the coastwise laws apply, either directly or by way of a foreign port,” unless the vessel was built in and documented under the laws of the United States and owned by persons who are citizens of the United States. See also 19 C.F.R. § 4.80(b)(2). Such a vessel, after it has obtained a coastwise endorsement from the U.S. Coast Guard, is said to be “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.

In the present case, 46 U.S.C. § 55103 is inapplicable to the subject voyage. In Headquarters Decision H016892, dated September 12, 2007, U.S. Customs and Border Protection (“CBP”) held that individuals embarking at a U.S. port and disembarking at a foreign port were not in violation of the coastwise laws since their transportation does not involve disembarkation at a coastwise port. Based on the facts presented, the subject individuals will embark at Ensenada, Mexico, a foreign port, and will be disembarking at the port of Santa Barbara, California, a U.S. port. Consequently, the individuals will not be in violation of the coastwise statutes insofar as their transportation does not involve embarkation at a coastwise port.

HOLDING

The use of a non-coastwise-qualified vessel in the voyage described above does not constitute an engagement in the coastwise trade in violation of 46 U.S.C. § 55103.

Sincerely,

Glen E. Vereb, Chief

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