Can I use a foreign-built boat in a charter fishing business?

Q_smlI own a foreign-built motor yacht that I would like to use in a charter fishing business, and I have a few questions about some of the legal issues I will face. I understand that federal law currently requires a charter boat to be built in the United States, but I read a news report that Congress is considering a repeal of that law. Is this correct? If the restriction is still in effect, would it apply to a “six-pack” charter? Also, I have heard that commercial fishing boats are subject to the same regulations but that Canadian boats routinely participate in commercial fishing in California. Do commercial fishing boats qualify for an exception to the law?



The foreign-build restrictions referred to by our reader are set forth in certain provisions of the Merchant Marine Act of 1920, commonly known as the “Jones Act.” The Jones Act was enacted in 1920 to protect the rights of killed and injured maritime workers and their families, and to protect U.S. maritime industries from foreign competition.

The Jones Act requires any vessel that participates in “coastwise trade” to be constructed in the United States and manned by an American crew. Coastwise trade is the carriage of passengers or cargo within a U.S. port or from one U.S. port to another. This is viewed by some as unnecessary protectionist legislation and the law has come under attack in recent years, most notably by Sen. John McCain of Arizona.

McCain has proposed numerous bills to repeal the Jones Act. His most recent attempt was made through a proposed amendment to the Keystone XL oil pipeline bill. That legislation has no relationship whatsoever to maritime commerce, but Washington often works in mysterious ways. The bill passed the Senate without McCain’s amendment, much to the relief of the American maritime industry. So, the law is still in effect.

The Jones Act applies to all passengers and cargo vessels, so our reader won’t be able to escape the foreign-build restrictions by limiting his business to six-pack charters (charters that carry six or fewer paying passengers). He may, however, qualify for a waiver through the Small Vessel Waiver Program administered by the United States Maritime Administration (“MARAD”). Information regarding a waiver is available on MARAD’s web site at (follow the links to the Small Vessel Waiver Program). Ironically, the legislation that gave rise to the Small Vessel Waiver Program was initiated and sponsored by McCain.

Similarly, our reader’s concern about commercial fishing vessels is misplaced. Commercial fishing vessels, like passenger sportfishing vessels, must comply with the foreign – build restrictions of the Jones Act. And, since the MARAD waiver applies only to passenger vessels, it is not available for owners of foreign built commercial fishing vessels.

Our reader is correct in observing that Canadian-built commercial fishing vessels are fishing commercially in California. The column is printed in a recreational boating publication so I won’t spend a lot of time on this issue, but it should be discussed nonetheless. This illegal practice has increased recently, and it is made possible when the owner of a foreign built boat registers the boat with the California DMV instead of the Coast Guard. This is made possible through the use of falsified documents provided to the owner by the Canadian boat builder. The DMV does not monitor the requirements of the Jones Act, and the boats are therefore able to operate “under the radar” (pardon the pun). But the practice is illegal nonetheless.

The United States is one of many nations that protects its domestic transportation industries through “cabotage” laws, requiring trade between domestic ports to be conducted on aboard boats that are registered and built domestically, and these laws are not likely to change any time soon. A small vessel operator may nonetheless work within the system through the waiver program discussed above.

David Weil is licensed to practice law in the state of California and, as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Therefore, the information provided in this column should not be regarded as individual legal advice, and readers should not act upon this information without seeking the opinion of an attorney in their home state.

David Weil is the managing attorney at Weil & Associates ( in Long Beach. He is an adjunct professor of Admiralty Law at Loyola University Law School, is a member of the Maritime Law Association of the United States and is former legal counsel to the California Yacht Brokers Association. He is also one of a small group of attorneys to be certified as an Admiralty and Maritime Law Specialist by the State Bar of California. If you have a maritime law question for Weil, he can be contacted at (562) 438-8149 or at

11 thoughts on “Can I use a foreign-built boat in a charter fishing business?

  1. Thanks for clarifying this law. I contacted the MARAD waver site and filled out their application for my 40 year old, very sound, Albin Ballad 30 foot sloop (made in Sweden). For $500 bucks and a 2-3 month wait I can (maybe) get permission to use my boat to haul 12 or less persons.
    I really don’t see how I effect the US boatbuilding business at all, but I’ll shell out the $. Thanks McCain.

    • Just to further clarify, the 12-passenger limit is available only for boats that measure more than 100 gross tons (gross tonnage is printed on your boat’s certificate of documentation). Boats that are under 100 gross tons are limited to 6 passengers (a “Six-pack” charter). These restrictions apply to all boats – including boats that are built in the U.S. – and they have nothing to do with the foreign-build regulations or the MARAD waiver.

      David Weil

        • The answer depends on the construction of the vessel and/modifications required to obtain a COI. If the vessel was built to COI standards then the cost is less than modifying a recreational vessel to the standards.

  2. You claim that ad measuring is an illegal practice. That in fact is not true. Net tons has nothing to do with the size of the vessel and everything to do with hold space. A naval architect can easily design a boat that is 50×20 and under 5 net tons. There are 1000s of Nova Scotia built boats commercially fishing legally on the East Coast. There are 3 on the show Wicked Tuna alone. As long as the vessel comes in under 5 net tons from the builder or admeasured by a naval architect it cannot be documented and must be state registered. Once state registered it is perfectly legal to transfer commercial fishing permits over to the vessel. Chartering is another story.

    • Just to clarify – You misread the article. It does not say that the admeasurement process is illegal (for our readers, admeasurement is a procedure in documenting a vessel through the Coast Guard where gross and net tonnage numbers are estimated, using factors such as length, beam, draft etc, rather than physically measuring the boat). In fact, Coast Guard regs expressly allow for admeasurement on smaller vessels. Instead, the article says that admeasurement using fraudulent documents from the builder is illegal. And regardless of the vessel’s net tonnage, the cabotage provisions of the Jones Act prohibit the use of a foreign built hull in any passenger, cargo or fisheries service in U.S. waters. For more information, you may want to refer to this letter, published by the Pacific Fishery Management Council.

  3. Thank you Mr. Weil for your insightful article and followup info. After reading your article I immediately filed for the waiver for my 40-year old, 48-gross ton foreign-built vessel, to help cover its maintenance costs. If it is approved for 6-pack charters, will the same 6-person numerical limit be imposed when I use the vessel recreationally with my family and friends? Thank you.

    • Joe – No. Charter regulations (6-pack or otherwise) apply only when you are carrying one or more passengers for hire. A passenger for hire is defined as someone for whom some kind of payment or compensation had to be paid for that person to be on the boat. If you don’t require payment (this would include contributions for fuel, groceries etc if you REQUIRE them to pay it), they are not a passenger for hire. If the charter rules don’t apply you are still limited to a safe number. The number is not strictly set forth in the regs but it means that you need to have a PFD for everyone aboard and you need to be able to respond to an emergency without tripping over people.

      David Weil

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