HQ 112931: Coastwise trade; transportation of merchandise; 46 U.S.C. App. 883; transportation of passengers; 46 U.S.C. App. 289; Water circus

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 112931

                           October 28, 1993

VES-3-02 CO:R:IT:C   112931 GOB

CATEGORY: Carriers

Mr. Mark Ravitz
Mark Ravitz Art & Design
200 Seventh Avenue
Brooklyn, New York 11215

RE:  Coastwise trade; transportation of merchandise; 46 U.S.C. App.
     883; transportation of passengers; 46 U.S.C. App. 289; Water
     circus

Dear Mr. Ravitz:

     This is in response to your letter dated October 18, 1993.  

FACTS:

     You ask whether certain activity is permissible with a
foreign-flag vessel.  You describe the activity as follows:

     ...a touring harbor show.  It is in essence a traveling water
     circus, with its largest single element being a coastal
     freighter 250' to 300' long...I will not be taking on any
     passengers like a cruise ship, and I will not be unloading any
     cargo for sale from port to port.  The coastal freighter will
     function as a large scenic prop and carry my "show (speed
     boats, inflatables, `zodiac' boats, jet skis, assorted scenic
     prop scale boats, etc.)" elements from harbor to harbor, as
a    normal touring show, except my show is on the water.  The
     freighter, in a sense, acts as my theater house and the water
     acts as my stage surface.  The performance would take place
on   the water between the vessel (which is moored 200' from shore)
     and land, where the public would be standing or seated.

ISSUE:

     Whether the above-described activity using a foreign-flag
vessel is permissible under the coastwise laws, i.e., 46 U.S.C.
App. 289 and 46 U.S.C. App. 883.

LAW AND ANALYSIS:

          Generally, the coastwise laws prohibit the transportation
of passengers or merchandise between points in the United States 

                              - 2 -

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.

     The coastwise law applicable to the carriage of passengers is
found in 46 U.S.C. App. 289 and 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.

     46 U.S.C. App. 883, the coastwise merchandise statute often
called the "Jones Act", provides in part that no merchandise shall
be transported between points in the United States embraced within
the coastwise laws, either directly or via a foreign port, or for
any part of the transportation, in any vessel other than a vessel
built in, documented under the laws of, and owned by citizens of
the United States.

     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.

     Section 4.50(b), Customs Regulations (19 CFR 4.50(b)) states:

     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.

     Assuming that all of the individuals aboard the vessel are
employed in connection with the traveling water circus or the
vessel, the vessel would not be engaged in the transportation of
passengers.  Thus, the proposed activity by a foreign-flag vessel
would not be violative of 46 U.S.C. App. 289, the coastwise
passenger statute.  However, if the vessel transports any
individuals who are not employed in connection with the traveling
water circus or the vessel, the transportation of those individuals
by a foreign-flag vessel would constitute a violation of 19 U.S.C.
289. 

     We find that the proposed activity by a foreign-flag or non-
coastwise qualified vessel would be violative of 46 U.S.C. App.
883, the coastwise merchandise statute.  A violation of 46 U.S.C.
App. 883 occurs with respect to a foreign-flag or non-coastwise
qualified vessel when a lading occurs at one coastwise point and
an unlading occurs at another coastwise point.  A lading and
unlading would occur in the situation which you describe.  A lading
would occur when the various materials (speed boats, inflatables,
etc.) 


                              - 3 -

are put onto the vessel and an unlading would occur when those
materials are taken off the vessel in the harbor.

HOLDING:

     The activity involved in the touring harbor show or traveling
water circus, as described supra, by a foreign-flag or non-
coastwise qualified vessel would be violative of 46 U.S.C. App.
883.  The activity would not be violative of 46 U.S.C. App. 289,
provided that all of the individuals transported are employed in
connection with the traveling water circus or the vessel.



                                                                 
                              Sincerely,



                              Arthur P. Schifflin
                              Chief
                              Carrier Rulings Branch