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HQ H026285

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April 21, 2008

VES-3-02-OT:RR:BSTC:CCI H026285 GG

CATEGORY: CARRIER

Mr. David Choate
Project Manager
Sail Boston, Inc.
One Design Center Place
Boston, Massachusetts 02210

RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 CFR § 4.50(b)

Dear Mr. Choate:

This is in response to your correspondence of April 16, 2008, in which you request a ruling on behalf of the FONDATION BELEM regarding the use of a foreign-flag vessel in U.S. territorial waters and the coastwise transportation of up to 48 individuals. Our ruling is set forth below.

FACTS

The BELEM (the “vessel”) is a French-flagged training sail vessel that will be visiting Boston during the period from June 18, 2008 to June 22, 2008 on its way to the 400th anniversary celebration of the City of Quebec. You state that the captain would like to invite guests to be sail trainees upon the vessel’s departure to Canada on its voyage north via a port in Maine. The vessel is permitted to operate with 18 crewmembers and 48 sail trainees. You also state that the sail trainees will be engaged in the business of the vessel, will not contribute consideration for carriage, will not be paid for onboard services, and will not be licensed as professional mariners in accordance with the International Convention on Standards of Training, Certification and Watchkeeping for Seafarer (STCW). Prior to sailing onboard the vessel, the sail trainees will receive safety instruction and will perform emergency drills including fire, muster/abandon ship, and damage control drills. The sail trainees aboard the ship will stand watch and participate in the operation of the ship.

ISSUE

Whether the use of a French-flagged sailing vessel in U.S. waters for instruction of sail trainees constitutes a violation of 46 U.S.C. § 55103.

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. 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.

The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103 (recodified by Pub. L. 109-304, enacted on October 6, 2006) and provides that:

(a) In General. Except as otherwise provided in this chapter or chapter 121 of this title, a vessel may not transport passengers between ports or places in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel--

(1) is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and

(2) has been issued a certificate of documentation with a coastwise endorsement under chapter 121 or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement.

(b) Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed.

Section 4.50(b), U.S. Customs and Border Protection (“CBP”) Regulations (19 CFR § 4.50(b)) provides 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.

You state that the subject individuals will be transported on the vessel as sail trainees for the purpose of standing watch and participating in the operation of the ship. U.S. Customs and Border Protection (CBP) has long held that a person transported on a vessel as a student in bona fide instructional courses in oceanography or sailing and navigation/seamanship, when the presence of that person is required on board the vessel as 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. See HQ 115947 (April 16, 2003), citing HQ 108166 (February 27, 1986). In this context, and in accordance with previous Headquarters rulings, trainees on a sail training vessel are not classified as “passengers” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 4.50(b) (HQ 112022 (January 13, 1992) and HQ 112098 (May 6, 1992), citing HQ 109850, dated December 27, 1988, and HQ 109287, dated February 24, 1988).

Thus, in the present case, to the extent that the sail trainees would be traveling on the foreign vessel between coastwise ports in connection with a bona fide instructional course in sailing and navigation with class or other instruction, as would be the case under the facts herein submitted, such individuals would not be considered to be passengers.

HOLDING

The use of a French-flagged sailing vessel in U.S. waters for instruction of sail trainees as described above does not constitute a violation of 46 U.S.C. § 55103.

Sincerely,

Glen E. Vereb

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