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Hiring Bahamian national on US flagged vessel?

Discussion in 'General Yachting Discussion' started by Captain Jim, Jan 8, 2014.

  1. Captain Jim

    Captain Jim New Member

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    We are a US flagged vessel currently in the Bahamas and heading down to the Caribbean next month. My owner is contemplating hiring a Bahamian to crew with us. I don't know the law or ramifications of hiring a non US citizen. Can we legally take him aboard while outside the US? How about when we head back to the US? If so, what will be his requirements as far as visa etc.? I never had to hire a foreigner before so thanks in advance for the input.

    Jim
  2. Opcn

    Opcn Senior Member

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    Does your owner make his yacht available for charter, or is it purely for private use?
  3. Captain Jim

    Captain Jim New Member

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    100% private use. No charters.
  4. Just Looking

    Just Looking New Member

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    It is my understanding that if you get the employee a green card, they can work on a US flagged vessel. I think I saw it quoted that you can have up to 15% of you crew be non-US citizens. Here is a quote of regulations about who must be US citizen:
    § 15.720 Use of non-U.S. licensed and/or documented personnel. (a) United States vessels which need to replace one or more persons while on a foreign voyage and outside the jurisdiction of the United States, in order to meet manning requirements, may use non-U.S. credentialed personnel without a TWIC, except for the positions of master and radio officer, until the vessel returns to a port at which in the most expeditious manner replacements who are citizens of the United States can be obtained. (b) The citizenship requirements of 46 U.S.C. 8103(a) and (b) and the TWIC requirement of 46 U.S.C. 70105 are waived, except for the requirement that the master must be a U.S. citizen holding a TWIC, with respect to the following vessels: (1) A U.S.-documented offshore supply vessel (OSV) (as that term is defined in 46 U.S.C. 2101(19)) that is operating from a foreign port; and (2) A U.S.-documented mobile offshore drilling unit (MODU) (as that term is defined in 46 U.S.C. 2101(15a)) that is operating beyond the water above the U.S. Outer Continental Shelf. (c) The waiver provided in paragraph (b) of this section does not apply to any vessel operating in water above the U.S. Outer Continental Shelf (as that term is defined in 43 U.S.C. 1331(a)). (d) The master shall assure that any replacements of crewmembers by non-U.S. citizens made in accordance with this section will be with an individual who holds a credential which is equivalent in experience, training, and other qualifications to the U.S. credential required for the position and that the person possesses or will possess the training required to communicate to the extent required by §15.730 of this part. [CGD 89–061, 55 FR 1212, Jan. 12, 1990, as amended by USCG–2006–24371, 74 FR 11261, Mar. 16, 2
  5. olderboater

    olderboater Senior Member

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    This is not a situation where he would have a green card however and the ability to hire on a temporary basis is very limited. Plus he must be a replacement for a crew member. Second he must be needed to meet manning requirements. We don't know the size of this vessel. However, I'd say it's very unlikely that this situation would fit and allow the hiring. This is a situation of trying to work around specific rules so one would need to find an exception that allowed such to take place. Additionally this isn't a situation of being across the world with no access to US crew. You're barely offshore and there is likely US crew available.
  6. K1W1

    K1W1 Senior Member

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    Hi,

    From what I understand if you are not in the US or any US dependency you can have non US Crew in most positions except Master or Radio Officer ( if this position still actually exists).

    There are many US Yachts with non US Crew scattered throughout the world.
  7. Captain Jim

    Captain Jim New Member

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    If this helps, our vessel is 82'. His position is not a required manning position and he is not replacing anyone. It will also be a non-officer position, just general light maintenance and cleaning.
  8. Fishtigua

    Fishtigua Senior Member

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    I have worked on US flagged boats on British and Antiguan passports. When in US waters I was cleared in as a guest of the owner. Not once was this questioned. Anywhere else, there was never a problem.

    Just make sure your crew has the right documents/visas and you inform your insurance and medical representatives.
  9. Marmot

    Marmot Senior Member

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    Before quoting CFRs it would probably be worth reading them.

    46 USC § 8103 - Citizenship and Navy Reserve requirements | Title 46 - Shipping | U.S. Code | LII / Legal Information Institute

    Read paragraphs (a) and (b)-(2a)

    The first thing to read in a CFR is the applicability and exemptions. Most CFRs are written to regulate commercial vessels. The ones that are not often explicitly exempt yachts, which in US law are only private pleasure vessels. There are no commercial yachts under U.S. flag.
  10. Opcn

    Opcn Senior Member

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    What a bizarre suggestion.

    As soon as you start taking charter guests you become a passenger vessel for the purposes of crew though right?

    So, Captain Jay can hire this Bahamian mystery man, and he can come along to US waters as "a guest" with out many problems, so long as he has the appropriate documents to enter the US.

    Does anyone here know about having him actually on the books, as a crew member, rather than a guest? I am assuming that Captain Jay's employer would like to keep his nose clean, and stay out of gray areas.
  11. Marmot

    Marmot Senior Member

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    You would better serve yourself and other readers if you studied more and assumed less before posting.

    Wrong assumptions on your part continue to define your posts.
  12. thatcher

    thatcher Member

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    I have worked on US flagged boats, and as long as you are not in US waters your fine. If you go to the USVI he has to be cleared as a guest. As a Bahamian he also needs a US visa.
  13. Captain Jim

    Captain Jim New Member

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    This is paramount and the basis for my post here. We are not trying to skirt any laws. Just found a good worker and he is looking to get off the docks and onto a boat. It's a win/win if it is possible. All other employees are US but on hired as needed basis.
    Last edited: Jan 9, 2014
  14. Marmot

    Marmot Senior Member

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    Just make sure he has all the documents he requires for entry into every foreign port you plan to visit or you will be buying some escorts and an expensive airline ticket.
  15. karo1776

    karo1776 Senior Member

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    Not controlling a USA Flagged boat... I have it a little easier... but

    This brings up a pet peeve of mine. The crew nationalities and taxes.

    USA citizens are taxed by citizenship/greed card status or residency by the US wherever in the world they are... they owe US taxes. But not necessarily either... if they are on land and resident of a tax treaty with the US country then they can select which tax scheme they want.

    However, many other countries than the USS base there taxation on residency usually a little over 180 days presence in the country's territory.

    The pet peeve is this handicaps USA citizens as crew because they have to pay tax to the US wherever they are unless they are "resident of a tax cooperation treaty country" wherein they can choose. This means with a mix of nationalities on board the US crew members effectively make less. A lot less in some cases though they might have the same pay rate. This creates problems in a mixed crew as simply the US crew have less to spend.

    This brings up withholding and tax issues. Many owners and management companies do not like the extra problem of doing withholding for various nationalities... particularly as the boats often never touch US territory.... so this prejudices things agains US crew IN MY OPINION.

    Now I have a situation that developed a numerous years ago as example. I hired a young man from the USA... I knew his family and my US tax guy recommended him... he was paid very well considering experience but he was a hard worker and learned very fast. We handled this by hiring him as a "contract labor worker"... this was fully explained to him at the time. And, as his goal in life at the time was to go into the financial services industry and had worked for my USA tax guy (who is a genius) as an intern helping with taxes. One would think he knew the rules. He actually later on worked on Wall Street and is a CPA... and much more... he has a couple masters degrees now (and now works for me in a very important position). Well the summer in question he earned a lot of money because of tips etc. He was very young and was going to college in the fall... well that summer break he earned a lot. And, he had the influence of the crew community he met on and off the boat... and they are not always the best advisors or role models... sometimes they are sometimes not so much. No he was very very new to all this.

    As no tax was withheld he owed a lot in US taxes... but the money was all spent on a new car and school issues. He thought how could anyone find out I made all this money. We follow the rules to the letter. Well when his tax bill came up later and his school situation as to come up later it made a bit of a mess... that his father had to cover... . This was not the goal of the job.

    Now I wonder...
    Now the new laws/regs. the USA has adopted on taxation after the new venture into healthcare may have significantly changed things for US Flagged boats... not due to healthcare issues but taxation.... though this does not apply to my situation.

    I likely applies to a lot of USA based forum members... and they should investigate. And, this applies to this post and the foreign national guy. I am not an expert but in my understanding now:

    "If a foreign national earns income from a USA source... though he does not touch USA territory he may be subject to withholding of 30% paid to the Federal IRS on the earnings made and paid by the USA source." I am wondering if this has filtered down into the yachting community yet and who it will be handled... ???
  16. Captain Jim

    Captain Jim New Member

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  17. Capt J

    Capt J Senior Member

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    Outside of the US it is not a problem for you as a US flagged vessel in any way, shape, or form in regards to US laws and most countries let in Bahamian Nationals as easy as US Nationals if you're travelling. Inside the US it should not be a problem either, but his visa requirements may become a problem (length of stay) and you might have to fly him back to the Bahamas once in a while.
  18. K1W1

    K1W1 Senior Member

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  19. Opcn

    Opcn Senior Member

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    I don't know Marmot, sounds like the one person who knows for sure seems to think my assumption was spot on, and said so in the very next post. You assume that when I say "I assume" that makes me wrong, that is incorrect.

    So we know that they will be fine if they get the right documents to bring him in as a guest and pretend that he is a guest. What if they advertise the fact that he is crew. Is that still going to be okay, or will they have created a problem for themselves? This is an important distinction to the OP and probably will be in the future to other readers who come along and see this thread, and it hasn't really been answered in the responses.