Yacht News

A client asked me the other day whether she could put her french-built sailboat into a charter program in the US. The answer is yes, but only as a “Bareboat” charter. 

The use of foreign owned or foreign built yachts in a commercial application is strictly prohibited by the Jones Act (46 U.S.C. § 55102). However, foreign-built and foreign-owned yachts may operate in U.S. waters for pleasure and non-commercial purposes. These vessels may also be chartered in U.S. waters, as well, but only for non-commercial purposes.

Per the Jones Act , “a vessel may not provide any part of the transportation of merchandise by water between points in the US, either directly or via a foreign port, unless the vessel: (1) is wholly owned by a US citizen for purposes of engaging in coastwise trade and (2) has been issued a US Certificate of Documentation with a coastwise endorsement.”

The Passenger Service Act (46 U.S.C § 55103) restricts the use of foreign-built vessels to carry passengers for hire or trade between US ports. Foreign-flagged, owned and built yachts can operate only non-commercially in the United States. Although the carrying of passengers for hire is considered to be a commercial use, demise (bareboat) charters are not considered to be commercial uses, so long as the charterers are using the vessels non-commercially.  

The demise charter (aka bareboat charter) agreement’s main characteristic is that it places possession of the vessel in the hands of the charter party. Simply put, at the time the charter starts, the owner relinquishes possession of the vessel and the charterer takes over crew selection, vessel operation and management. To use the legal terminology, the owner must relinquish “possession, command and navigation of the vessel” as to be “tantamount to, although just short of, an outright transfer of ownership.” The charterer is responsible for hiring and maintaining a crew and for the vessel’s operation, and he or she assumes responsibility for the vessel and its activities. The owner must have no ties to the crew selection or a company employing the crew (which the law may construe as retaining some control over the vessel, in breach of the basic premise of this agreement). The charterer is obligated to maintain the vessel in a good state or repair during the charter and must return it in the same condition it was when it was received, ordinary wear and tear excepted.

Mike Wales is a maritime lawyer and co-owner of AGL Yacht Sales, Inc. along with his wife Leilani Wales, a licensed California Yacht Broker. You can reach Mike at mike@aglyachtsales.com or at 480.250.5651.

Good news all around San Diego! Boating opens today, Friday May 1st for Family Household members only. PLEASE DO NOT ABUSE THIS ORDER or the privilege will be taken away from us all of us. See below message from the Mayor, City of Coronado. Stay Safe and I will see you on the water!

Beaches
After a successful reopening of our beaches for limited use on April 27, the Governor’s office indicated that a complete closure of all beaches statewide would take effect beginning on May 1. A leaked memo from the California Police Chief’s Association stated that all beaches and state parks were to be closed this Friday. After the memo was leaked, a swift backlash occurred and, at his press conference today, the Governor stated that only beaches in Orange County would be affected by a hard closure. While I am personally glad to hear our regional beaches were spared, part of the reason Orange County beaches were more crowded than usual was because of the nice weather and the fact that no other nearby beaches were open. Removing public space only crowds people in a smaller amount of space. So our beaches remain open throughout the region for limited use including, walking, running, surfing, swimming, paddling, and kayaking. I expect additional beach activities will begin within a couple weeks.

Bays
We received great news last week when we successfully petitioned for activities on the bay to be allowed again. As of this Monday, kayaking, paddle boarding, and swimming were all allowed, however, recreational boating was still prohibited…until now. Beginning tomorrow, May 1, recreational boating is allowed again in bays throughout San Diego County. Boating is limited to those of the same household, but it as least a big and overdue step.

Golf Courses
San Diego County golf courses are allowed to reopen again, beginning May 1, with certain protocol in place that can be found here.
https://www.sandiegocounty.gov/…/c…/golf-course-protocol.pdf

Some of these protocols seem a bit onerous and they will definitely take away from the joy of playing, but, at least we golfers can swing a club again. Check with your local course about hours and tee times as some courses may need a few days to get up and running again.

You can read about all of the specifics of the latest updates directly from the County of San Diego website here. https://www.sandiegocounty.gov/coronavirus.html

I cannot say THANK YOU enough, for making this possible. What began as a simple facebook post and petition, grew into a movement with nearly 5,000 individuals championing the safe reopening of our public spaces in a commonsense way. I know we are not done yet, but we have come a long way because of your efforts.

Thank you!

Richard Bailey
Mayor, City of Coronado

AGL Yacht Sales, (http://aglyachtsales.com/) is a yacht brokerage located in San Diego and owned by Leilani Wales, a Certified Professional Yacht Broker, and her husband Mike Wales. Even during days of social distancing, AGL Yacht Sales is helping buyers and sellers ensure their transaction goes smoothly and is a pleasurable experience. Read more…

Sent: Friday, April 3, 2020 3:54 PM
To: Sharon Cloward sharon@sdpta.com
Subject: Amended County Health Order
Importance: High

Hi Sharon,

Attached is a copy of the Amended Health Order from the County. Based the flurry of feedback and questions over the last couple of days, we have updated the FAQs on our website, but I have also pasted them below for you to circulate to the tenants.  

If I have a boat on the water, (at a mooring, marina, etc.) can I go out on it, fish, sail, etc.? / Is kayaking/stand up paddle boarding on San Diego Bay permitted?

Per the County’s amended public health order, boating for recreational purposes, watersports, or swimming are prohibited on or in public waterways and at beaches. This order is effective as of 12 a.m., Saturday, April 4, 2020 until further notice. Therefore, San Diego Bay is closed to recreation – including boating, kayaking, paddle boarding, and recreational fishing – until further notice.

Remember, the State and San Diego County public health directives during the COVID-19 crisis are for all of us to stay at home. The only exceptions are essential needs. These orders allow public agencies, including law enforcement, to focus resources on protecting public health and safety during this global health and economic crisis.  

We understand this isn’t welcome news – we hope it will be for a short duration. In fact, the more we all follow the stay-at-home orders, the sooner we can get back to “normal.” These are challenging times for us all, and the Port appreciates the public’s patience and understanding as we all work together to keep each other healthy and well and to flatten the curve.

Note: Those who continue to participate in recreation on San Diego Bay should be prepared to be stopped and questioned by Port of San Diego Harbor Police. Law enforcement, including Harbor Police, is prepared to issue citations for violations of the State and County stay-at-home orders. Those citations carry a maximum fine of up to $1,000 and up to 6 months in jail.

What if I want to go out to the ocean? Will I be allowed to leave? Will I be allowed to come back? What about my right of passage?

At this time, the channel is not closed, but be prepared to be stopped and questioned by Harbor Police. Law enforcement, including Harbor Police, is prepared to issue citations for violations of the State and County stay-at-home orders. Those citations carry a maximum fine of up to $1,000 and up to 6 months in jail.

Per the State’s stay-at-home order, and consistent with the County of San Diego’s amended public health order, only essential activities are allowed. Water recreation is not considered an essential activity.

Note: This does not apply to those conducting essential commercial activity or to those seeking service at a designated critical infrastructure boat yard.

What if I live on my boat?

Harbor Police will address and consider liveaboards on a case-by-case basis, taking into consideration individual circumstances.

Where can I fish if I can’t fish from the piers and the boat launches are closed?/Is fishing from shore permitted?/ Kayak fishing?/ I fish to feed my family. Can I be out on the bay?

We understand this temporary situation will adversely impact local fishing opportunities and are hopeful that it will be for a short duration. Per the County’s amended public health order, boating for recreational purposes, watersports, or swimming are prohibited on or in public waterways and at beaches. Therefore, recreational fishing – whether along the shoreline or on the water – is not permitted at this time.

We understand this isn’t welcome news, but we hope it will be for a short duration. In fact, the more we all follow the stay-at-home orders, the sooner we can get back to “normal.” These are challenging times for us all, and the Port appreciates the public’s patience and understanding as we all work together to keep each other healthy and well and to flatten the curve.

I’m a commercial fisherman. Can I use the launches?

Licensed/registered vessels engaged in commercial fishing, with valid permits, are authorized to use the Shelter Island Boat Launch.

Are the transient boat docks/anchorages open?

All the transient docks are still open as are the anchorages. They are subject to all the permitting requirements and compliance with all the laws and rules.

Any idea or plan for when the bay, parks, beaches, launch ramps and other facilities will reopen?

This situation is fluid and the Port will continue to follow the lead of local, state and federal health authorities at the San Diego County Health & Human Services, the California Department of Public Health, and the CDC, in implementing protocols for public spaces. We appreciate everyone’s patience and will provide updates as we have them at portofsandiego.org/covid19.

Penny Maus
Department Manager, Real Estate
Port of San Diego|
3165 Pacific Highway
San Diego, CA 92101