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HQ 111600


April 8, 1991

VES-2-CO:R:IT:C 111600 KVS

CATEGORY: CARRIER

Mr. William E. Vajda
Daniel F. Young, Inc.
17 Battery Place North
New York, NY 10004

RE: Request for waiver of 19 U.S.C. 289

Dear Mr. Vajda:

This is in response to your letter dated April 8, 1991, which requests a waiver of the applicable passenger coastwise laws contained in 46 U.S.C. 289.

FACTS:

Your letter states that a passenger is hospitalized aboard the Queen Elizabeth 2, which is scheduled to arrive in New York tomorrow. This passenger embarked in Fort Lauderdale and is scheduled to disembark at this same port. Because of her illness, the passenger wishes a family member to embark in New York and accompany her to Fort Lauderdale to assist her in packing, grooming etc. Your letter indicates that the family member would not be paying Cunard Line any consideration for transportation between New York and Fort Lauderdale.

Your letter acknowledges that the proposed transportation is a contravention of the coastwise laws, but states that the passenger, through Cunard Line, is requesting a "compassionate waiver."

ISSUE:

Whether the prohibition against the transportation of passengers between U.S. coastwise points by a foreign vessel, contained in 46 U.S.C. 289 can be waived due to exigent personal circumstances, i.e., passenger illness.

LAW AND ANALYSIS:

Generally, the coastwise laws (e.g., 46 U.S.C. App. 289 and 883, and 46 U.S.C. 12106 and 12110) prohibit the transportation of merchandise or passengers between points in the

United States embraced within the coastwise laws in any vessel other than a vessel built in and documented under the laws of the United States, and owned by persons who are citizens of the United States.

Points in the United States embraced within the coastwise laws include points in the territorial sea (defined as the belt, three nautical miles wide, seaward of the territorial sea baseline), and points located in internal waters (those waters landward of the territorial sea baseline, in cases where the baseline and the coastline differ.)

Under the provisions of 46 U.S.C. App. 289, no foreign vessel shall transport passengers between ports or places in the United States, either directly or by way of a foreign port. The penalty for violating this section of the law is $200 for each passenger so transported and landed.

A "passenger," for the purposes of the coastwise laws, is defined as "...any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business" (19 CFR 4.50(b)).

The navigation laws (including the coastwise laws) can only be waived under the authority provided by the Act of December 27, 1950 (64 Stat. 1120; note preceding 46 U.S.C. App. 1). This statute provided that "[t]he head of each department or agency responsible for the administration of the navigation and vessel inspection laws is directed to waive compliance with such laws upon request of the Secretary of Defense [and] [t]he head of such department or agency is authorised to waive compliance with such laws ... either upon his own initiative or upon the written recommendation of the head of any Government agency whenever he deems that such action is in the interest of national defense."

Customs has no authority to grant waivers of the coastwise laws other than on grounds permitted by the statute. In the absence of a recognizable security interest, we are unable to grant a waiver of the coastwise laws in this instance. This result is in line with Customs prior decisions on this issue.

HOLDING:

The prohibition against the transportation of passengers between U.S. coastwise points by a foreign vessel cannot be waived in the absence of a demonstrated interest of national defense.

Sincerely,

B. James Fritz

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