Coastwise; Towing; Passengers; Restaurant; Stationary Vessel; 46 U.S.C. App. 289; 46 U.S.C. App. 316; 19 C.F.R. 4.80.

HQ 112174 August 3, 1992 VES-3-02/10-03 CO:R:IT:C 112174 JBW CATEGORY: Carriers 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