Traditionally, the United States’ various Customs and Border Protection (CBP) offices have had the freedom to interpret the Jones Act and the Passenger Vessel Services Act as they saw fit. This has, as a result, led to inconsistencies in how the acts have been put into practice. While the exact cause of the recent change in attitude is unknown, with some believing it to be caused by changing personnel and others believing it to be the result of a failed South Floridian audit, there is no doubt that the landscape has changed.
Previously, foreign-flagged vessels that were offered for sale or charter, but were not liable for duty payment, were able to obtain a cruising license and sail freely in US coastal waters – this is no longer the case. While it is possible to sail from port to port without a cruising license, the process requires more rigid planning and is administratively far more burdensome.
A number of South Floridian CBP offices have recently determined that these vessels are no longer eligible for cruising licenses, based on the interpretation that they are engaged in trade – regardless of whether or not they are offered for sale or charter while in US waters. Moreover, large private yachts, that have been commercially certified for practical reasons, are also being viewed as ineligible, to the letter of the law.
“After reviewing the process, CBP realised that the law was not being applied uniformly throughout the country,” starts Patience Cohen of the Marine Industries Association of South Florida. “They are now in the process, using the Miami Tampa district as its template for action in Washington, of ensuring that the law is more uniformly applied, with a view to it being applied this way nationally.”
Unfortunately, for the superyacht industry, the uniform application of this law, as expounded in South Florida, does not allow for the issuance of the cruising license to commercially certified foreign-flagged superyachts, or superyachts that have been offered for sale or charter.
“As I read the law regarding cruising licenses, they are only meant for private and personal use, so a vessel carrying charter documentation does not qualify as private,” continues Cohen. “However, at the moment we are explaining to CBP that these vessels, while they are charter vessels, are not chartering in the US. It is the case that the superyacht industry has evolved into a commercial world and the legislation is yet to catch up.”
That being said, it may be that this development is more of a clerical issue than a practical one. If the owner of a commercially registered vessel wishes to use his yacht for private use, or allow his friends or family to use it, then it is possible obtain a cruising license, provided they are able to provide adequate proof that it is being used privately and for pleasure.
“The role of the CBP is to encourage commerce in the US – they are not trying to drive anyone away,” says Cohen. “But if you are a charter vessel then you know you cannot charter here. If you have legitimate dates for private usage, then a license is obtainable. The hope is to create a system that is uniformly abided by in order to lessen the confusion for visiting yachts. Most issues have arisen when a yacht has visited the US without using an agent.”
The Marine Industries Association of South Florida is working closely with the International Yacht Brokers Association, US Superyacht Association and a number of customs brokers to lobby CBP and reach a swift resolution. Members of these associations will be meeting CBP on 25 January to discuss the next step.
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