HQ 114321 - Coastwise transportation; 46 U.S.C. App. 289, 883; Passengers; Merchandise; Vessel report of arrival, entry and clearance; 19 U.S.C. 1433, 1434; 46 U.S.C. App. 91 - United States International Trade Commision Rulings

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HQ 114321

April 10, 1998

VES-3/3-02-RR:IT:EC 114321 GOB

CATEGORY: CARRIER

Ray Davis
Tobermory Adventure Tours
P.O. Box 241
Tobermory, Ontario NOH 2RO

RE: Coastwise transportation; 46 U.S.C. App. 289, 883; Passengers; Merchandise; Vessel report of arrival, entry and clearance; 19 U.S.C. 1433, 1434; 46 U.S.C. App. 91

Dear Mr. Davis:

This is in response to your letter of March 23, 1998.

FACTS:

You describe the facts as follows.

You have a 70 foot tug (the "vessel") which you use for dive charters. You wish to depart from Tobermory, Ontario, Canada and travel to the Thunder Bay underwater preserve in Alpena, Michigan. Your tug is "set up for live-aboard trips." You wish to dive the wrecks in the preserve with about 10 Canadian citizens . You state that you "would clear customs on arrival and would then dive in the area for about 3 days prior to returning back to Tobermory."

You inquire with respect to the applicability of 46 U.S.C. App. 289. You also ask about seeking refuge in a U.S. port if the weather turns foul. Finally, you ask with respect to a waiver of the applicable law.

ISSUE:

The relationship between the proposed activity and the coastwise laws.

LAW AND ANALYSIS:

Statutory and Regulatory Framework of Coastwise Laws

Generally, the coastwise laws prohibit the transportation of passengers or merchandise between points in the United States 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. A vessel that is built in, documented under the laws of, and owned by citizens of the United States, and which obtains a coastwise endorsement from the U.S. Coast Guard, is referred to as "coastwise-qualified."

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.

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. Merchandise is defined in 19 U.S.C. 1401(c) as "...goods, wares, and chattels of every description..."

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.

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

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.

Applicability of Coastwise Laws to Your Request

We assume from your inquiry that your vessel is not coastwise-qualified. See above with respect to a coastwise-qualified vessel.

The primary statute of applicability is 46 U.S.C. App. 289.

You may transport your clients or passengers from your Canadian point of departure to a point in the Thunder Bay underwater preserve in Alpena, Michigan. At that point, the passengers may leave the vessel and engage in diving activity. The passengers may then board the vessel for its return to Canada. This activity is permissible with respect to 46 U.S.C. App. 289 because the passengers are being transported from a point in Canada to a point in the U.S. They are then returned to Canada.

You may not engage in activity where you transport the passengers from one U.S. dive site to a second U.S. dive site because that activity would constitute the transportation of passengers between U.S. points. Such activity is violative of 46 U.S.C. App. 289.

46 U.S.C. App. 883 would be applicable to merchandise, such as diving equipment, which is laded on the vessel at a dive site in the U.S. (after having been transported from Canada and unladed at the dive site) and then unladed at a second dive site. Such activity is prohibited by 46 U.S.C. App. 883. As with the permissible passenger situation described above, you may lade merchandise in Canada and unlade it at a dive site in the U.S.

You ask with respect to seeking refuge in a U.S. port should the weather turn foul. The vessel may proceed from a dive site to a U.S. port in such a situation, but the passengers may not leave the vessel at the U.S. port, nor may merchandise (e.g., diving equipment) be unladed at the U.S. port.

The legislative bill which you submitted with your letter is a matter within the jurisdiction of the U.S. Coast Guard, which is within the U.S. Department of Transportation and is the U.S. agency which documents vessels. See the references to the Secretary of Transportation in sections two and four of the bill which you submitted. Accordingly, you must address that matter with the U.S. Coast Guard at the following address and telephone numbers:

National Vessel Documentation Center
2039 Stonewall Jackson Drive
Fallingwater, West Virginia 25419
1-800-799-8362
304-271-2519.

Report of Arrival, Entry and Clearance

Within the scope of your coastwise inquiry you ask: "... how would I clear Customs if I was out on a dive site and not allowed to motor to another U.S. Point[?]"

You may travel to a U.S. port from the dive site in order to enter and clear your vessel, but the passengers may not leave the vessel at the port.

For your information, we will recite the basic report of arrival, entry and clearance requirements.

Pursuant to 19 U.S.C. 1433, the master of a vessel shall report arrival at the nearest Customs facility immediately upon arrival at any port or place within the United States when arriving from a foreign port or place.

Pursuant to 19 U.S.C. 1434, the master of a vessel shall make formal entry at the nearest Customs facility within 24 hours after arrival at any port or place in the U.S. from a foreign port or place.

Pursuant to 46 U.S.C. App. 91, the master of a vessel shall obtain clearance from the Customs Service before proceeding from a port or place in the United States for a foreign port or place.

Upon coming into the U.S. from Canada, you may proceed to the nearest Customs facility to report arrival, make entry, and obtain clearance. However, the passengers may not leave the vessel at the U.S. port assuming they will leave the vessel at the dive site.

HOLDING:

The coastwise laws, 46 U.S.C. App. 289 and 883, apply as described above. Passengers and merchandise may not be transported between U.S. points in a non-coastwise-qualified vessel.

Sincerely,

Jerry Laderberg
Chief,

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