Coastwise Transportation; 46 U.S.C. §§ 55103, 55121

HQ H145801 February 1, 2011 VES-3-02-OT:RR:BSTC:CCI H145801 GOB CATEGORY: Carriers Ms. Judith Ann Fleming General Manager Nautilus Explorer P.O. Box 97182 Richmond, BC V6X 8H3 Canada RE: Coastwise Transportation; 46 U.S.C. §§ 55103, 55121 Dear Ms. Fleming: This letter is in response to your correspondence dated January 11, 2011, in which you request a ruling on whether the coastwise transportation of passengers between ports in southeastern Alaska on the Canadian-flagged NAUTILUS SWELL constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS: Your company, Icarus Aviation Ltd., which does business as Nautilus Explorer, owns and operates a Canadian-flagged, 83-foot vessel, the NAUTILUS SWELL. You wish to transport passengers between Sitka, Alaska and Ketchikan, Alaska. ISSUE: Whether the use of a non-coastwise-qualified vessel in the transportation described above constitutes an engagement in the coastwise trade in violation of 46 U.S.C. § 55103? LAW AND ANALYSIS: The coastwise passenger statute, 46 U.S.C. § 55103, provides that no foreign vessel shall transport passengers “between ports or places in the United States to which the coastwise laws apply, either directly or by way of a foreign port,” under a penalty of $300 for each passenger so transported and landed. 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. The coastwise passenger statute does not apply in certain circumstances such as 46 U.S.C. § 55121(b), which provides that: Until the Secretary of Transportation determines that service by vessels of the United States is available to provide the transportation described in paragraph (1) or (2), sections 55102 and 55103 of this title do not apply to the transportation on Canadian vessels of— passengers between ports in southeastern Alaska; or passengers or merchandise between Hyder, Alaska, and other points in southeastern Alaska or in the United States outside Alaska. In the present case, the passengers will be transported between Sitka, Alaska and Ketchikan, Alaska on a Canadian vessel. Both Sitka and Ketchikan are located in southeastern Alaska. Based upon the fact that that the Secretary of Transportation has not determined that vessels of the United States are available to provide transportation for passengers between the subject ports in southeastern Alaska, 46 U.S.C. § 55103 is inapplicable to the subject transportation pursuant to 46 U.S.C. § 55121(b). HOLDING: The use of a non-coastwise-qualified vessel in the voyage described above does not constitute an engagement in the coastwise trade in violation of 46 U.S.C. § 55103. Sincerely, George Frederick McCray Supervisory Attorney-Advisor/Chief Cargo Security, Carriers and Immigration Branch Office of International Trade, Regulations & Rulings U.S. Customs and Border Protection