HQ 113089: Coastwise trade; foreign-flag vessel; gambling; voyage-to- nowhere; ferried passenger to high seas on non-coastwise- qualified vessels and seaplanes

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 113089

                         August 17, 1994


VES-3 CO:R:IT:C 113089 BEW

CATEGORY: Carriers

Peter S. Herrick, Esquire
Attorney at Law
222 S. W. 15th Road
Miami, Florida 33129

RE:  Coastwise trade; foreign-flag vessel; gambling; voyage-to-
     nowhere; ferried passenger to high seas on non-coastwise- 
     qualified vessels and seaplanes

Dear Mr. Herrick:

This is reference to your letter of April 20, 1994, in which you
request a ruling as to whether the transportation of passengers
on seaplanes and other vessels from the shore to a casino vessel
located beyond the three-mile limit is a violation of the
coastwise laws.

FACTS:

You state that Key West Casino, Inc., operates a foreign flag
vessel from Key West, Florida, on a voyage-to-nowhere, which does
not violate 46 U.S.C. App. 289.  You state that after the vessel
is beyond the 3-mile limit (the territorial waters), it operates
as a gambling casino while on the high seas.  You state that the
"voyage-to-nowhere" generally lasts from 6 p.m. to 12 p.m.  The
foreign-flag casino vessel returns to Key West where the
passengers disembark.

You further state that while the foreign-flag vessel is on the
high seas and operating as a casino, other vessels and seaplanes
will bring "customers" from the United States to the casino
vessel.  Prior to the time that the casino vessel returns to the
United States, the customers (passengers) who board the casino
vessel while she is at sea, will leave the vessel and return to
the United States on the ferrying vessels and seaplanes where
they will disembark at the point of embarkation. 

ISSUE: 

Whether the use of seaplanes and other vessels to ferry
passengers from the shore to a foreign-flag casino vessel which
is located outside of the 3-mile U.S. territorial sea constitutes
a violation of 46 U.S.C. App. 289. LAW AND ANALYSIS:

Generally, the coastwise laws (e.g., 46 U.S.C. App. 289 and
883, and 46 U.S.C. 12106 and 12110) prohibit the transportation
of merchandise or passengers between points in the United States
embraced within the coastwise laws in any vessel other than a
vessel built in and documented under the laws of the United
States, and owned by persons who are citizens of the United
States.

The passenger coastwise law, 46 U.S.C. App. 289, 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 penalty of $200 for
          each passenger so transported and landed.
 
For purposes of the coastwise laws, a vessel "passenger" is
defined as "... any person carried on a vessel who is not
connected with the operation of such vessel, her navigation,
ownership, or business."  (Section 4.50(b), Customs Regulations.) 
Section 4.80a, Customs Regulations (19 CFR 4.80a) is interpretive
of section 289.

In its administration of 46 U.S.C. App. 289, the Customs Service
has ruled that the carriage of passengers entirely within
territorial waters, even though the passengers disembark at their
point of embarkation and the vessel touches no other coastwise
point, is considered coastwise trade subject to coastwise laws. 
However, the transportation of passengers to the high seas (i.e.,
beyond U.S. territorial 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.  It
should be noted that the carriage of fishing parties for hire,
even if the vessel proceeds beyond territorial waters and returns
to the point of the passenger's embarkation, is considered
coastwise trade.

In interpreting the coastwise laws, Customs has ruled that a
point in United States territorial waters is considered a point
embraced within the coastwise laws.  The coastwise laws generally
apply to points in the territorial sea, defined as the belt,
three (3) 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.
 In the subject case, the use of the foreign-flag casino vessel to
transport passengers on a voyage-to-nowhere is not a violation of
46 U.S.C. App. 289.     

It is stated that while the said vessel is on a voyage-to-
nowhere, other vessels and seaplanes would be used to ferry
customers (passengers) from a coastwise point to the casino
vessel's location on the high seas, and that these passengers are
returned to the shore on the same vessels and seaplanes.  With
respect to the these vessels and seaplanes, the transportation of
passengers on these vessels would not be in violation of section
289.  However, these vessels and seaplanes are subject to the
entry and clearance requirements provided under the Customs laws
and regulations.

HOLDING:

The use of non-coastwise-qualified vessels, other than the
foreign-flag casino vessel, and seaplanes to ferry passengers
from the shore to a foreign-flag casino vessel which is outside
of the 3-mile U.S.
 territorial sea would not constitute a violation of 46 U.S.C.
App. 289.

                                     Sincerely,



                                     Arthur P. Schifflin
                                     Chief
                                     Carrier Rulings Branch