Ferry; Coastwise Trade; Great Lakes Trade; 46 U.S.C. App. 289, 883; 46 U.S.C. 12107

HQ 111147 August 29, 1990 VES-3-02-CO:R:P:C 111147 GV CATEGORY: Carriers Edward von Bergen President Von Bergen, Ltd. 623 North Barcelona Street Pensacola, Florida 32501 RE: Ferry; Coastwise Trade; Great Lakes Trade; 46 U.S.C. App. 289, 883; 46 U.S.C. 12107 Dear Mr. von Bergen: This is in response to your letter dated June 26, 1990, requesting a ruling regarding a proposed passenger/vehicle ferry service between Cleveland and Canada on Danish-flagged vessels. Our ruling is set forth below. FACTS: Your firm is exploring the possibility of utilizing two new British-built, Danish-flagged, U.S.-crewed "Superflex" ferries to be chartered from PZ Trading A/S in a public ferry route between Cleveland and Canada. Under your proposed itinerary the subject vessels would depart on the Cleveland-Canada route every four (4) hours from either side. The route would only be between one point in the U.S. and one point in Canada with no intermediate stops. ISSUE: Whether the operation of a foreign-built, foreign-flagged ferry on a regularly scheduled service between a U.S. port and a Canadian port is prohibited by 46 U.S.C. App. 289 and 883. LAW AND ANALYSIS: Title 46, United States Code Appendix, section 883 (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 and part of the transportation, in any vessel other than a vessel - 2 - built in and documented under the laws of the United States and owned by persons who are citizens of the United States (i.e., a coastwise-qualified vessel). Title 46, United States Code Appendix, section 289 (46 U.S.C. App. 289, the passenger coastwise statute), prohibits the transportation of passengers between points embraced within the coastwise laws of the United States, either directly or by way of a foreign port, in a non-coastwise-qualified vessel. Pursuant to section 4.50(b), Customs Regulations (19 CFR 4.50(b)) a "passenger" for purposes of section 289 is defined as "any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership or business." Title 46, United States Code, section 12107 (46 U.S.C. 12107) provides for the documentation requirements for vessels operating on the Great Lakes. These documentation requirements, although identical to those of vessels operating in the coastwise trade discussed above (see 46 U.S.C. 12106, 12110), are only applicable to vessels operating under the U.S. flag. Accordingly, the British-built, Danish-flagged ferries under consideration would not be considered to be engaged in the coastwise trade when transporting passengers and vehicles between Cleveland and Canada. Consequently, your proposed ferry service would not be in violation of 46 U.S.C. App. 289 and 883. Furthermore, in view of the fact that the subject vessels are foreign-flagged they are not subject to the documentation requirements for vessels operating on the Great Lakes as set forth in 46 U.S.C. 12107. In addition, you should know that title 19, United States Code, section 1433(a)(1) (19 U.S.C. 1433(a)(1)) provides for the immediate report of arrival at a U.S. port of any vessel from a foreign port. It should also be noted that title 19, United States Code, section 1435 (19 U.S.C. 1435) provides that a foreign vessel shall make entry at the Customhouse within 48 hours of its arrival in the United States from a foreign port. However, title 19, United States Code, section 1441(2) (19 U.S.C. 1441(2)) exempts from the entry requirement "Passenger vessels making three trips or oftener a week between a port of the United States and a foreign port, or vessels used exclusively as ferryboats, carrying passengers, baggage or merchandise: Provided, That the master of any such vessel shall be required to report such baggage and merchandise to the appropriate customs officer within twenty-four hours after arrival." A ferryboat is a vessel which carries both persons and their vehicles. Accordingly, while the subject vessels would be required to report their arrival, they would not be required to make entry. - 3 - HOLDING: The operation of a foreign-built, foreign-flagged ferry on a regularly scheduled service between a U.S. port and a Canadian port is not prohibited by 46 U.S.C. App. 289 and 883. Sincerely, B. James Fritz Chief Carrier Rulings Branch