VES-7-03-RR:IT:EC 114715 GEV
Peter T. Middleton, Esq.
Middleton & Shrull
44 Mall Road, Suite 208
Burlington, Massachusetts 01803-4530
RE: High Seas; Nicholson Act; 46 U.S.C. App. § 251(a)
Dear Mr. Middleton:
This is in response to your letter dated May 25, 1999, on behalf of your client, Elliott Shipping, Inc., of Gloucester, Massachusetts, requesting a ruling concerning clarification of the definition of the term “high seas” for purposes of the 46 U.S.C. App. § 251(a) (the “Nicholson Act”). Our ruling on this matter is set forth below.
FACTS:
A Russian-flag vessel recently off-loaded frozen fish at the Port of Gloucester, Massachusetts. Customs determined that the fish had originally been laden aboard the vessel at some point outside the Russian territorial sea and hence was on the high seas at the time. The subsequent off-loading of the fish at the Port of Gloucester resulted in a violation of the Nicholson Act. The cargo was denied entry into the commerce of the United States.
Because it is anticipated that foreign-flag vessels laden with frozen fish do intend to call at the Port of Gloucester in the near future and will attempt to land that cargo in the United States, a clarification of exactly what constitutes the “high seas” is requested in order to avoid such an unfortunate misunderstanding in the future.
ISSUE:
What is the definition of the term “high seas” for purposes of 46 U.S.C. App. § 251(a)?
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LAW AND ANALYSIS:
The Nicholson Act (the Act of September 2, 1950, as amended, Ch. 842, 64 Stat. 577; 46 U.S.C. App. § 251(a)), provides as follows:
Except as otherwise provided by treaty or convention to which
the United States is a party, no foreign-flag vessel shall, whether
documented as a cargo vessel or otherwise, land in a port of the
United States its catch of fish taken on board such vessels on the
high seas or fish products processed therefrom, or any fish or fish
products taken on board such vessel on the high seas from a vessel
engaged in fishing operations or in the processing of fish or fish
products. (Emphasis added)
The term “high seas” is not further defined in the statute. However, Customs has long-held that, “For purposes of this statute, the high seas are those waters outside the territorial waters of the United States or the territorial waters of another nation. The territorial waters of the United States include the territorial sea, defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and points in internal waters, landward of the territorial sea baseline, where the baseline and the coastline differ.” (Customs ruling letter 112287, dated August 20, 1992)
Customs position with respect to the demarcation line between U.S. territorial waters and the high seas is premised on long-standing judicial precedent which states that the former includes the “...harbors, bays and other enclosed arms of the sea along its coast, and a marginal belt of the sea extending from the coastline outward a marine league, or three geographic miles...” Cunard Steamship et al.v. Mellon, et al, 262 U.S. 100, 122 (1923) All waters beyond this belt are, if not under foreign territorial jurisdiction, the high seas. (Customs ruling letter 103476, dated June 23, 1978) This position is also reflected in the regulations of the U.S. Coast Guard, a Federal agency with which Customs enforces the navigation laws it administers. (See 33 CFR §§ 2.05-1 and 2.05-5 for the definitions of “high seas” and “territorial waters”, respectively.)
With respect to the legal authority cited for the proposition that Customs current interpretation of the “high seas” for purposes of the Nicholson Act is incorrect, we note the following. Presidential Proclamation 5928 of December 27, 1988, did extend the territorial sea of the United States to 12 nautical miles in order to “...advance the national security and other significant interests of the United States.” It further provides that, “Nothing in this Proclamation: (a) extends or otherwise alters existing Federal or State law or any jurisdiction, rights, legal interests, or obligations derived therefrom;...” (Emphasis added)
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In addition, Presidential Proclamation 5030 of March 10, 1983, which proclaimed the current 200-mile Exclusive Economic Zone (EEZ), also provided that, “This Proclamation does not change existing United States policies concerning...fisheries,...” It further provides that the EEZ “...remains an area beyond the territory and territorial sea of the United States in which all States enjoy the high seas...” (Emphasis added)
With respect to the 1982 United Nations Convention on the Law of the Sea, since the United States is not a signatory it is inapposite in this matter. As for 16 U.S.C. § 1826 (“the Driftnet Act Amendments of 1990"), no provision contained therein precludes Customs current interpretation of the term “high seas” within the meaning of the Nicholson Act.
HOLDING:
For purposes of 46 U.S.C. App. § 251(a), the “high seas” include those waters outside of the 3-mile U.S. territorial sea or the territorial waters of another nation..
Sincerely,
Jerry Laderberg
Chief
Entry Procedures and Carriers Branch