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HQ 115947

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April 16, 2003

VES-3-19-RR:IT:EC 115947 CK

CATEGORY: CARRIER

Mr. David Choate
Vice President
Conventures, Inc.
One Design Center Place
Boston, MA 02210

RE: Coastwise Trade; Sailing Instruction; 46 U.S.C. App. § 289

Dear Mr. Choate:

This is in response to your letter dated March 24, 2000 requesting a ruling on behalf of the STV JEANIE JOHNSTON regarding the use of a foreign-flagged vessel in U.S. waters. Our ruling on this matter is set forth below.

FACTS:

The STV JEANIE JOHNSTON is an Irish-flagged training sail vessel that is a replica of the original JEANIE JOHNSTON ship, built in 1847, which carried Irish emigrants from Ireland to the United States and Canada. You state that the STV JEANIE JOHNSTON may operate with 11 crewmembers and 29 sail trainees. You state that the sail trainees are engaged in the business of the vessel, contribute consideration for carriage and are not paid for onboard services, however, they are not professional mariners in accordance with STCW Convention. You state that prior to sailing the trainees will receive safety instruction and will perform emergency drills, including fire, muster/abandon ship, and damage control drills. The sail trainees aboard the ship will stand watch and participate in the operation of the ship, and the STV JEANIE JOHNSTON will not carry passengers at any time.

ISSUE:

Whether the use of an Irish-flagged sailing vessel in U.S. waters for instruction of sail trainees constitutes a violation of 46 U.S.C. App. § 289.

LAW AND ANALYSIS:

The Bureau of Customs and Border Protection (CBP) enforces various navigation laws which deal with the use of vessels in what is recognized as coastwise trade. Included among these laws is the Act of June 19, 1886, as amended (24 Stat. 81; 46 U.S.C. App. § 289, sometimes called the coastwise passenger law), which 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.

Pursuant to § 4.50(b), Customs Regulations (19 CFR § 4.50(b)), the word "passenger," for purposes of the above-cited statute, is defined as "...any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business."

CBP has consistently interpreted the prohibition set forth in 46 U.S.C. App. § 289 to apply to all vessels except United States-built, owned, and properly documented vessels (see 46 U.S.C. § 12106, 12110; and 46 U.S.C. App. § 883). Furthermore, CBP has promulgated regulations pursuant to 46 U.S.C. App. § 289. These regulations may be found in title 19, Code of Federal Regulations, § 4.80a.

The coastwise laws generally apply to points in the territorial sea, 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, in cases where the baseline and coastline differ.

In our interpretation of 46 U.S.C. App. § 289, CBP has long-held that a person transported on a vessel as a student in bona fide instructional courses in oceanography or sailing and navigation/seamanship, when the presence of that person is required on board the vessel as a part of his or her course or training, is not a passenger for purposes of the coastwise laws (CBP ruling letter 108166, dated February 27, 1986). This is so regardless of whether a fee is charged for the aforementioned instruction.

Upon reviewing the proposed use of the STV JEANIE JOHNSTON in U.S. waters, it is readily apparent that it falls within the permitted activities described above. Consequently, such use would not constitute coastwise trade in violation of 46 U.S.C. App. § 289.

HOLDING:

The use of an Irish-flagged sailing vessel in U.S. waters for instruction of sail trainees as described above does not constitute a violation of 46 U.S.C. App.

Sincerely,

Glen E. Vereb

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