VES-3-02/10-03 CO:R:IT:C 112174 JBW
Jennifer S. Farmer, Esquire
Hanover, Walsh, Jalenak & Blair
Fifth Floor, Falls Building
22 North Front Street
Memphis, Tennessee 38103-2109
RE: Coastwise; Towing; Passengers; Restaurant; Stationary
Vessel; 46 U.S.C. App. 289; 46 U.S.C. App. 316; 19 C.F.R.
4.80.
Dear Ms. Farmer:
This letter is in response to your letter of March 27, 1992,
in which you request a ruling on the application of laws and
regulations administered by the Customs Service to the proposed
permanent mooring of a vessel for use as a restaurant on the
Mississippi River and to the use of another vessel for
occasionally maneuvering the moored vessel.
FACTS:
The GLORIA M is a 187 ton towboat that has been depowered.
This vessel will become a permanently moored, floating restaurant
in Memphis, Tennessee. You state that the vessel will remain
stationary at all times except when the vessel is moved for
repair. During such moves, you state that the vessel will not be
carrying passengers or merchandise. The RICHARD K, a 17 ton tow
boat, will be used exclusively to maneuver the GLORIA M in
response to changing river stages to avoid damage to the boat
from the dock.
ISSUES:
(1) Whether the use of a moored, depowered tow boat as a
restaurant constitutes an engagement in the coastwise trade.
(2) Whether the use of a towing vessel to maneuver another
vessel while in navigable waters is a towing within the meaning
of 46 U.S.C.A. App. 316(a) (West Supp. 1991).
LAW AND ANALYSIS:
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.
46 U.S.C. App. 289. The Customs Service has consistently
interpreted this proscription to apply to any vessel except a
United States built, owned, and properly documented vessel. See
46 U.S.C.A. 12106 & 12110 (West Supp. 1991), 46 U.S.C. App.
289, and 19 C.F.R. 4.80(a) (1992). The territorial waters of
the United States are defined to include 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 the coastline
differ. Headquarters Ruling Letter 111275, dated November 13,
1990.
The Customs Service has determined that a vessel not
qualified for the coastwise trade may be used as a restaurant
without violating the coastwise statute provided the vessel
remains stationary by mooring or anchoring while the passengers
are on board. Headquarters Ruling Letter 110588, dated March 15,
1990. Any movement by the vessel from its stationary location
with passengers on board would constitute a violation of 46
U.S.C. App. 289. From these rules, we determine that the
proposed use of the GLORIA M would not constitute a violation of
the coastwise laws, regardless of that vessel's documentation,
provided that it remains anchored while the customers are on
board.
United States law further prohibits the towing of any
vessel, other than a vessel in distress, by a vessel not
documented under the laws of the United States to engage in the
coastwise or Great Lakes trade between ports or places in the
United States embraced within the coastwise laws, either directly
or by way of a foreign port or place, or for any part of such
towing, or such towing between points in a harbor of the United
States. 46 U.S.C.A. App. 316(a).
You state that the RICHARD K will be used to maneuver the
GLORIA M in response to changing river stages to avoid damage to
the boat from the dock. From this description, we infer that the
GLORIA M will be towed, if only slightly, between points on the
river. Such movement would constitute a movement in violation of
the coastwise towing statute if the RICHARD K is not documented
with a coastwise endorsement.
HOLDING:
The proposed use of the GLORIA M as a moored, floating
restaurant would not constitute a violation of the coastwise
laws, regardless of that vessel's documentation, provided that it
remains anchored while the customers are on board. From the
description provided, the use of the RICHARD K to maneuver the
GLORIA M will result in a violation of the coastwise towing
statute if the RICHARD K is not documented with a coastwise
endorsement.
Sincerely,
B. James Fritz
Chief