Coastwise trade; Voyage to nowhere; Charter fishing; 46 U.S.C. App. 289

HQ 112171 May 20, 1992 VES-3-02-CO:R:IT:C 112171 GFM CATEGORY: Carriers Mr. John Harrison Klein Vice-President Qualifier 105 Sportfishing P.O. Box 60729 San Diego CA 92166 RE: Coastwise trade; Voyage to nowhere; Charter fishing; 46 U.S.C. App. 289 Dear Mr. Klein: Reference is made to your letter, received in our office March 28, 1992, which requests a ruling regarding the transportation between a coastwise point and international waters of passengers engaged in charter fishing activities conducted aboard a non-coastwise-qualified vessel during a "voyage to nowhere." FACTS: It is proposed that a foreign-flagged vessel, not qualified to engage in the coastwise trade, would board passengers at San Diego, California and proceed to Mexican waters. Once there, the passengers would engage in charter fishing activities before being returned to, and disembarking at, the same point at which they boarded the vessel. ISSUE: Whether the carriage of passengers into international waters during a voyage to nowhere on board a non-coastwise-qualified vessel for purposes of charter fishing constitutes a violation of existing law. 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. For your general information, we have consistently interpreted this prohibition to apply to all vessels except United States-built, owned, and properly documented vessels (see 46 U.S.C. 12106, 12110, 46 U.S.C. App. 883, and 19 C.F.R. 4.80). In interpreting the coastwise laws as applied to the transportation of passengers, the Customs Service ruled in Treasury Decision 22275 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 point, is considered coastwise trade subject to the coastwise laws. However, in accordance with 29 Opinions of the Attorney General 318, the transportation 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 territorial waters of the United States consist of the territorial sea, defined as the belt, three nautical miles wide, adjacent to the coast of the United States and seaward of the territorial sea baseline. With regard to charter fishing operations, however, certain restrictions are imposed. The Bureau of Navigation and Steamboat Inspection (the predecessor agency to the Customs Service in the administration of the coastwise and other navigation laws) ruled in 1936 (Circular Letter No. 103, June 3, 1936), that the carriage of fishing parties to the high seas or foreign waters and back to the passenger's point of embarkation, is an engagement in coastwise trade for which proper coastwise documentation is required. This position was subsequently affirmed by the Customs Service in Treasury Decision 55193(2), published in 1960. Subsequent administrative rulings have consistently supported this position. The proposal at hand contemplates just such an impermissible carriage of fishing parties into foreign waters and a return of those parties to the initial point of embarkation. As a result, it is clear that this proposal would constitute a violation of existing law. HOLDING: Following a thorough review of the facts and analysis of the law and applicable precedents, we have determined that passengers may not be taken on a non-coastwise-qualified vessel from a coastwise point, into international waters, and back to the same coastwise point for the purpose of engaging in charter fishing activities. Sincerely, B. James Fritz Chief Carrier Rulings Branch