HQ 109517: Applicability of 46 U.S.C. App. 289 to the use of a foreign-built vessel in the commercial sport fishing service out- side United States territorial waters and in waters contiguous to another country

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 109517

                                   August 17, 1988


          VES-3-02 CO:R:P:C  109517 PH

          CATEGORY:  Carriers

          Mr. David L. Grant
          President
          Admiralty Marine Surveyors & Associates, Inc.
          920 North Avalon Boulevard
          Wilmington, California 90744

          RE:  Applicability of 46 U.S.C. App. 289 to the use of a
          foreign-built vessel in the commercial sport fishing service out-
          side United States territorial waters and in waters contiguous to
          another country

          Dear Mr. Grant:

              This in response to your letter of May 10, 1988, in which you
          request a ruling on the use of a foreign-built vessel in the
          commercial sport fishing service out of San Diego, California.

          FACTS:

              You state that you represent a client who has owned a number
          of small United States-built and documented passenger vessels en-
          gaged in commercial sport fishing.  You state that you are inves-
          tigating the feasibility of building another vessel in a foreign
          shipyard with the intention of employing it in the commercial
          sport fishing service out of San Diego, California.  Your client
          plans to embark passengers from San Diego and proceed beyond
          United States territorial waters and south of 30 degrees 11 min-
          utes North latitude (the United States-Mexican border).  Fishing
          would only take place in waters south of 30 degrees 11 minutes
          North latitude.  After the voyage passengers would disembark at
          the same point at which they had embarked.  You contend that this
          operation would not be coastwise trade.

          ISSUE:

              May a foreign-built vessel be used in commercial sport
          fishing out of San Diego, California, when the passengers are
          embarked and disembarked at San Diego and transported beyond

















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          United States territorial waters and fishing takes place solely
          in waters south of 30 degrees 11 minutes North latitude (the
          United States-Mexican border)?

          LAW AND ANALYSIS:

              The Act of June 19, 1886, as amended (24 Stat. 81; 46 U.S.C.
          App. 289, sometimes called the coastwise passenger law), 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.

          We have consistently interpreted this proscription to apply to
          any vessel except a United States-built, owned, and properly
          documented vessel (see 46 U.S.C. 12106 and 12110, 46 U.S.C. App.
          883, and 19 CFR 4.80(a), the latter with regard to vessels which
          may not be documented by the United States Coast Guard because
          they measure less than 5 net tons).

              As we stated in our letter of April 18, 1986 (File No.
          108228), to which you referred in your letter:

                    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, even though the passengers disem-
                    bark at their point of embarkation and the vessel
                    touches no other point, is considered coastwise trade
                    subject to the coastwise laws.  However, the transpor-
                    tation 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.  The
                    Customs Service has ruled that the carriage of fishing
                    parties for hire, even if the vessel proceeds beyond
                    territorial waters and returns to the point of the
                    passengers' embarkation, is considered coastwise trade
                    subject to the coastwise laws.  The territorial waters
                    of the United States consist of the territorial sea,
                    defined as the belt, 3 nautical miles wide, adjacent to
                    the coast of the United States and seaward of the
                    territorial sea baseline.

              Our position that the carriage of fishing parties for hire,
          even if the vessel proceeds beyond United States territorial wa-
          ters and returns to the point of the passengers' embarkation, is
          coastwise trade, is, as we stated in our April 18, 1986, letter:











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                    ... based on a 1936 ruling by the predecessor to the
                    Customs Service in the administration of the coastwise
                    and other navigation laws (Bureau of Navigation and
                    Steamboat Inspection Circular Letter No. 103, June 3,
                    1936 ...).  In Treasury Decision 55193(2) ... we con-
                    firmed this position and have consistently so held
                    since the issuance of that Treasury Decision in 1960.

          For your convenience, we are enclosing copies of the Bureau of
          Navigation and Steamboat Inspection Circular Letter and the
          Treasury Decision referred to in the foregoing quotation.

              With regard to our position concerning the carriage of
          fishing parties for hire, we have held that such carriage is con-
          sidered coastwise trade whether the carrying vessel transports
          the fishing parties solely within United States territorial wa-
          ters or to the high seas or foreign waters (see, e.g., our ruling
          letter dated January 15, 1981 (File No. 104932)).  In the commer-
          cial sport fishing operation you describe, the vessel would pro-
          ceed beyond United States territorial waters and fishing would
          take place solely in waters south of the United States-Mexican
          border.  Thus, fishing would be limited to either Mexican terri-
          torial waters or the high seas contiguous to Mexican territorial
          waters.  Under the interpretation of the coastwise laws described
          above, such an operation would be considered coastwise trade and
          would be prohibited if the vessel used was a foreign-built
          vessel.

          HOLDING:

              A foreign-built vessel is prohibited from being used in
          commercial sport fishing out of San Diego, California, when the
          passengers are embarked and disembarked at San Diego and trans-
          ported beyond United States territorial waters and fishing takes
          place solely in waters south of 30 degrees 11 minutes North
          latitude (the United States-Mexican border).


                                        Sincerely,




                                        B. James Fritz
                                        Chief
                                        Carrier Rulings Branch