HQ 113102: Coastwise Trade; Voyage-to-Nowhere; Stationary Platform; Guam; 46 U.S.C. App. 289

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 113102

                          May 13, 1994

VES-3-CO:R:IT:C 113102 GEV

CATEGORY:  Carriers

Samuel J. Cohen, Esq.
Zamsky & Cohen
Suite 501, Bank of Guam Building
111 Chalan Santo Papa
Agana, Guam 96910

RE:  Coastwise Trade; Voyage-to-Nowhere; Stationary Platform;    
Guam; 46 U.S.C. App.   289

Dear Mr. Cohen:

     This is in response to your letter dated May 12, 1994,
enclosing your letter to the District Director, U.S. Customs
Service, Honolulu, Hawaii, dated April 25, 1994.  You request a
ruling regarding the application of 46 U.S.C. App.   289 to the
operation of your client's vessel, the M/V SEA PRINCESS.  The
ruling you seek is set forth below.

FACTS:

     The M/V SEA PRINCESS is a foreign-built and documented vessel
operating out of Apra Harbor, Guam.  The vessel engages in the
transportation of passengers on various cruises some of which
constitute valid voyages-to-nowhere and therefore do not violate
46 U.S.C. App.   289.  However, Customs has recently assessed a
penalty against the vessel owners in view of the fact that one of
the cruises offered violates the aforementioned statute.  This
particular cruise embarks passengers in Apra Harbor, proceeds to
and touches the three-mile limit of the U.S. territorial waters,
then re-enters Apra Harbor and moors to two buoys approximately
1/2 mile from the passengers' point of embarkation.  At this
location passengers get off the M/V SEA PRINCESS onto waiting jet
skis and power boats for associated recreational water sports,
eventually returning to the M/V SEA PRINCESS.  Typically, the M/V
SEA PRINCESS remains moored for about three hours then gets
underway again to return to the passengers' point of embarkation
where they disembark.
                              - 2 -
    
     Although the owners of the M/V SEA PRINCESS will, in a
separate correspondence, contest Customs penalty assessment on the
cruise described above, in an effort to prevent future violations
of 46 U.S.C. App.   289 in the continued use of the vessel in Apra
Harbor, Customs is requested to rule whether the following two
scenarios are permissible under the passenger coastwise law.

          1.  Beginning any voyage of the M/V SEA PRINCESS
          from the mooring and ending the voyage at the
          same place.  It is proposed to use a U.S.-flagged
          and built vessel to ferry passengers from the 
          dock to the M/V SEA PRINCESS moored at the buoy
          in the middle of Apra Harbor.  Thereafter, the
          M/V SEA PRINCESS will transport these passengers 
          beyond the 3-mile U.S. territorial sea and return to  
          the mooring buoy.  After returning to the mooring
          buoy, the passengers will then be permitted to use 
          the M/V SEA PRINCESS as a platform for engaging in 
          water sports and activities for 3-5 hours.  After
          finishing such water sports and activities, the 
          passengers will be returned to shore by the use
          of a U.S.-flagged and built vessel as a ferry.

          2.  Use of the M/V SEA PRINCESS as a mere staging
          area for water sports and activities.  To do this,     
     U.S.-flagged and built vessels would transport the          
passengers from the dock to the M/V SEA PRINCESS 
          which would be moored at a mooring buoy inside Apra
          Harbor and would be completely anchored at all times.  
          Thereafter, the passengers would be free for
          the next 3-5 hours to engage in water sports and 
          activities.  Upon completion of such water sports
          and activities, the passengers would thereafter be
          ferried on a U.S.-flagged and built vessel from the
          stationary M/V SEA PRINCESS back to the dock.

ISSUES:

     1.  Whether the use of a foreign-built, foreign-flagged vessel
to transport passengers from a coastwise point within a harbor to
a point beyond the 3-mile U.S. territorial sea and returning to the
same coastwise point where they will use the vessel as a platform
for water sports prior to returning to shore on a U.S.-flagged and
built vessel constitutes a violation of 
46 U.S.C. App.   289.
                              - 3 -

     2.  Whether the use of a foreign-built, foreign-flagged vessel
solely as a stationary staging area for water sports whereby the
vessel would remain anchored at all times within a harbor within
the 3-mile U.S. territorial sea with passengers being ferried from
shore to the vessel by a U.S.-flagged and built vessel constitutes
a violation of 46 U.S.C. App.   289.

LAW AND ANALYSIS:

     Title 46, United States Code Appendix,   289 (46 U.S.C. App.
  289, the passenger coastwise law), prohibits the transportation
of passengers between points in the United States embraced within
the coastwise laws, either directly or by way of a foreign port,
in a non-coastwise-qualified vessel (i.e., any vessel other than
one that is built in and documented under the laws of the United
States and owned by persons who are citizens of the United States). 


     The coastwise laws generally apply to points in the U.S.
territorial sea, 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 cases
where the baseline and the coastline differ.  Points within the
same harbor are also embraced within the coastwise laws. 
Furthermore, the coastwise laws as applicable to Guam pursuant to
46 U.S.C.   877.

     In regard to the first scenario under consideration, the use
of the M/V SEA PRINCESS in transporting passengers from their point
of embarkation in Apra Harbor to a point beyond the 3-mile U.S.
territorial sea and returning to the point of embarkation to
disembark, without intervening stops, constitutes a voyage-to-
nowhere which, pursuant to a 1912 opinion of the Attorney General
(29 O.A.G. 318 (1912)), does not constitute a violation of 46
U.S.C. App.   289.  The fact that the passengers' point of
embarkation and disembarkation for the M/V SEA PRINCESS is the same
point and happens to be at a location within the harbor and not on
shore does not negate the validity of a valid voyage-to-nowhere.
                              - 4 -
  
     In the second scenario the use of the M/V SEA PRINCESS as a
stationary staging area is also not a violation of 46 U.S.C. App.
  289.  It is stated that during the period in which the vessel
would be used for water sports by the passengers ferried from shore
to its location within Apra Harbor, it would be "...completely
anchored at all times..." (See counsel's April 25, 1994, letter at
p. 3)  Accordingly, the M/V SEA PRINCESS cannot be said to be
transporting passengers between coastwise points.  
          
     We note that both scenarios discussed above fail to give rise
to a violation of 46 U.S.C. App.   289 with respect to the M/V SEA
PRINCESS in view of the fact that the vessel is not involved in the
transportation of passengers between coastwise points.  With
respect to the vessels ferrying passengers from shore to the M/V
SEA PRINCESS' mooring point within Apra Harbor, such vessels are
transporting passengers between coastwise points and therefore must
be coastwise-qualified (i.e., U.S.-built, owned and documented). 
It appears from the information provided that this is in fact the
case.

HOLDINGS:

     1.  The use of a foreign-built, foreign-flagged vessel to
transport passengers from a coastwise point within a harbor to a
point beyond the 3-mile U.S. territorial sea and returning to the
same coastwise point where they will use the vessel as a platform
for water sports prior to returning to shore on a U.S.-flagged and
built vessel does not constitute a violation of 46 U.S.C. App.  
289.

     2.  The use of a foreign-built, foreign-flagged vessel solely
as stationary staging area for water sports whereby the vessel
would remain anchored at all times within the 3-mile U.S.
territorial sea with passengers being ferried from shore to the
vessel by a U.S.-flagged and built vessel does not constitute a
violation of 46 U.S.C. App.   289.

                              Sincerely,




                              Arthur P. Schifflin
                              Chief