us-cbp-cross-rulings-hq-109517•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
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
us-cbp-cross-rulings-hq-109517HQ 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 countryGuidance
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
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