HQ 0112208 - Passenger Coastwise Law; 46 U.S.C. App. 289 - United States International Trade Commision Rulings

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HQ 112208

June 29, 1992

VES-3-02 CO:R:IT:C 112208 MAR

CATEGORY: CARRIER

R. Taylor
Operations Department
Rice, Unruh, Reynolds Co.
115 Chestnut Street
Philadelphia, PA 19106

RE: Passenger Coastwise Law; 46 U.S.C. App. 289

Dear Mr. Taylor:

This is in reference to your letter dated April 9, 1992, concerning the proposed transport of passengers.

FACTS:

Two non-coastwise-qualified vessels, the Fyodor Dostoyevsky and the Maxim Gorkiy, will arrive in the United States with passengers boarded in Europe, and make a series of sightseeing calls at U.S. ports. At one U.S. port in each schedule there will be some passengers disembarking and some passengers embarking, but all embarkees will continue onboard to either the Azores or South America.

ISSUE:

Whether the use of foreign-built, foreign-documented vessels, intended to transport passengers embarking in Europe and disembarking in the United States, the Azores or South America, or embarking in the United States and disembarking in the Azores or South America, and making a series of sightseeing calls at intermediate U.S. ports, is prohibited by the coastwise trade laws.

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 (i.e., a coastwise-qualified vessel). 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 $200.00 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." See 19 CFR 4.50(b).

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.

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 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 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.

The focus of section 289 is on the route of the vessel. Turning to the case at hand, you propose two schedules for the transportation of passengers on non-coastwise-qualified vessels: 1.) Passengers will embark in Europe, make a series of sightseeing calls at intermediate U.S. ports, and will disembark at either one port in the U.S., the Azores, or South America; or 2.) Passengers will embark at one port in the U.S., make a series of sightseeing calls at intermediate U.S. ports, and will disembark at either the Azores or South America. Under either scenario, there will be no violation of 289 provided that the vessels do not transport any passengers between U.S. ports, with the exception of going ashore temporarily to take sight-seeing excursions.

HOLDING:

The use of foreign-built, foreign-documented vessels intended to transport passengers embarking in Europe and disembarking in the United States, the Azores or South America, or embarking in the United States and disembarking in the Azores or South America, and making a series of sightseeing calls at intermediate U.S. ports is not prohibited by the coastwise laws.

Sincerely,

B. James Fritz
Chief

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