HQ 0111673 - Coastwise Trade; Passengers; Foreign-Flag Vessel; Embark; Disembark; Go Ashore Temporarily; 19 CFR 4.80a; 46 U.S.C. App. 289 - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1992 HQ Rulings > HQ 0111571 - HQ 0111693 > HQ 0111673

HQ 111673

May 10, 1991

VES-3-02/07-CO:R:IT:C 111673 BEW

CATEGORY: CARRIER

Mr. Michael J. Brown
4084 Carroll Boulevard
University Heights, Ohio 44118

RE: Coastwise Trade; Passengers; Foreign-Flag Vessel; Embark; Disembark; Go Ashore Temporarily; 19 CFR 4.80a; 46 U.S.C. App. 289

Dear Mr. Brown:

This is in response to your letter dated May 3, 1991, addressed to Senator Howard M. Metzenbaum, requesting a ruling concerning the application of the Jones Act to a proposed cruise itinerary on a foreign flag vessel as set forth below.

FACTS:

The letter states that you and your wife have been awarded a one time only trip to the Ohio State University Alumni Association tour "Springtime Americana" which originates in New York City on May 16, 1991, and returns to New York City on May 30, 1991. The itinerary which you submitted shows that you will be cruising on a foreign-flag vessel, the ROYAL VIKING SUN. You would embark on the subject vessel at the port of New York on May 16, 1991. The vessel cruises from New York to Baltimore, Maryland, where the passengers will go ashore temporarily for a tour of Baltimore and a day at the Preakness Horse Race. On May 19, 1991, the vessel will depart Baltimore and sail to Hamilton, Bermuda, a nearby foreign port. The vessel will be at sea on May 22, 1991, will call at the ports of Charleston, South Carolina, and Savannah, Georgia, at sea for a day, will call at Fort Lauderdale, Florida, at sea for two days, and will conclude its voyage at the port of New York on May 30, 1991, where the passengers will disembark from the vessel.

During the cruise, the passengers would presumably go ashore temporarily to take sight-seeing excursions at the said intermediate U.S. ports of call.

You state that on May 26, 1991, your son is graduating from Cornell University, in Ithaca, New York. You and your wife request permission to leave the vessel temporarily when it arrives at the port of Savannah, Georgia, on May 25, 1991, to attend your son's graduation. You state that after attending your son's graduation, you and Mrs. Brown will fly to Fort Lauderdale, Florida, where you will re-board the vessel and cruise with it to the port of New York where you will disembark from the vessel.

ISSUE:

Whether there is a violation of 46 U.S.C. App. 289 if passengers are allowed to temporarily leave a foreign-flag vessel at an intermediate U.S. port for a short period of time (2 days), re-board the vessel at the next U.S. port of call and cruise with the vessel to the port of embarkation where the passengers will disembark from the vessel.

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.

The passenger coastwise law, 46 U.S.C. App. 289, provides that:

No foreign vessel shall transport passengers between ports or places in the United States either directly or by way of a foreign port, under penalty of $200 for each passenger so transported and landed.

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

In its administration of 46 U.S.C. App. 289, the Customs Service has ruled that the carriage of passengers entirely within territorial waters, even though the passengers disembark at their point of embarkation and the vessel touches no other coastwise point, is considered coastwise trade subject to coastwise laws.

However, the transportation of passengers to the high seas (i.e., beyond U.S. territorial waters) and back to the point of embarkation, assuming the passengers do not go ashore, even temporarily, at another United States point, often called a "voyage to nowhere", is not considered coastwise trade.

Customs has ruled that if passengers embark at a coastwise point and either disembark (see the definitions of "embark" and "disembark" set forth below 19 CFR 4.80a(a)(4)) or go ashore temporarily to take sight-seeing excursions at an intermediate U.S. port there would be no violation of section 289 if they are allowed to remain on shore at the intermediate U.S. port for an extended period of time (e.g., several days), but are on board when the vessel leaves the United States port for a distant foreign port. Transportation from the distant foreign port to the port of original embarkation would not be a coastwise transportation of passengers for purposes of section 289. The relevancy of whether an intermediate foreign port is a "nearby foreign port" (as defined in 19 CFR 4.80a(a)(2)) or a "distant foreign port" (as defined in 19 CFR 4.80a(a)(3)) is crucial in determining whether or not a violation of section 289 has occurred.

The focus of section 289 is on the route of the vessel. Section 4.80a(b)(2) of the Customs Regulations (19 CFR 4.80a(b)(2) provides that, "if the passenger is on a voyage to one or more one or more coastwise ports and a nearby foreign port or ports (but at no other foreign port) and the passenger disembarks at a coastwise point other than the port of embarkation, there is a violation of the coastwise law" (46 U.S.C. App. 289). We have ruled that if a passenger is on a voyage to one or more coastwise ports and a nearby foreign port or ports (but at no other foreign port) and the passenger disembarks the vessel at a nearby foreign port or if the passengers embark and disembark at the same coastwise port, there is no violation of section 289.

The threshold question regarding your tour is whether a passenger "disembarks" from the vessel as that term is defined in the Customs Regulations, when the passenger leaves the vessel temporarily at one port of call, re-boards at the next port of call, and continues to the conclusion of the specific voyage.

Section 4.80a(a)(4) defines embark and disembark as follows:

"Embark" means a passenger boarding a vessel for the duration of a specific voyage and "disembark" means a passenger leaving a vessel at the conclusion of a specific voyage. The terms "embark" and "disembark" are not applicable to a passenger going ashore temporarily at a coastwise port who re-boards the vessel and departs with it on sailing from the port.

In the background portion of the Federal Register notice (50 FR 126 (1985)) which published the final rule that amended section 4.80a (a)(4) to include the above stated language, it is stated that:

The terms "embark" and disembark" are trade words of art which normally mean going on board a vessel for the duration of a specific voyage and leaving a vessel at the conclusion of a specific voyage. In this normal context the words do not contemplate temporary shore leave for any specific number of hours during a voyage. It has been determined that the use of the terms in the amendment will follow the intent of Congress and clarify the scope of the regulations. That the statutory language "so transported and landed" means the final and permanent disembarking is further shown by the following Attorney General Opinions:...

Without citing the Attorney General Opinions set forth in the background, we conclude that a passenger would not have "disembarked" from the vessel if the passenger does not "finally and permanently" leave the vessel until the conclusion of the specific voyage.

If you and Mrs. Brown temporarily leave the vessel at the port of Savannah, Georgia, and reboard at the port of Fort Lauderdale, Florida, there would not be a violation of section 289 provided that you have booked passage for the entire voyage and cruise to the conclusion of the specific voyage.

Specifically, the passage must be booked from the port of embarkation, in this case New York, to the port of disembarkation also New York. When you and your wife temporarily leave the vessel, you must retain your accommodation. The vessel operator must not use those accommodations for any other persons while you are away from the vessel, you must have the right to leave any part of your possessions in your berth while you are temporarily away from the vessel, and the cost of the complete voyage of your passage must include the time that you and your wife are away from the vessel.

Under such circumstances, if a passenger temporarily departs from a foreign-flag vessel at a United States port of call for a brief period, and reboards the vessel at the next port of call, cruising to the conclusion of the specific voyage and disembarking from the vessel at the port of embarkation, the passenger will not be considered as having "disembarked" from the vessel during the temporary absence and there would be no violation of 46 U.S.C. App. 289.

HOLDING:

The subject passengers will not be considered to have disembarked from a vessel for the purposes of 46 U.S.C. App. 289, when they temporarily leave the vessel at a coastwise port for two days, provided they reboard the vessel at another coastwise port on the itinerary for which they booked passage continue with the vessel to the conclusion of the voyage, and disembark at the port of embarkation, and provided further that their accommodations are not used for any other persons while they are temporarily away from the vessel.

Sincerely,

B. James Fritz

Previous Ruling Next Ruling