HQ 0112447 - 46 U.S.C. App. 289; Coastwise Trade; Passengers; Foreign-Flag Vessel; MS KAZAKHSTAN - United States International Trade Commision Rulings

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HQ 112447

September 16, 1992

VES-3-06-CO:R:IT:C 112447 MLR

CATEGORY: CARRIER

Joern D. Insel
Managing Director
Delphin Seereisen GmbH
Blumenstrasse 20
6050 Offenbach a/m
Germany

RE: 46 U.S.C. App. 289; Coastwise Trade; Passengers; Foreign-Flag Vessel; MS KAZAKHSTAN

Dear Mr. Insel:

This is in response to your facsimile dated September 9, 1992, requesting confirmation that your cruise itinerary is in compliance with 46 U.S.C. App. 289.

FACTS:

Delphin Seereisen GmbH, plans to conduct a cruise aboard the MS KAZAKHSTAN, a Ukrainian-flag vessel. In Customs Ruling 112233, we determined that Section 2 of the cruise (San Francisco, California to New Orleans, Louisiana) constitutes a violation of 46 U.S.C. App. 289. Section 2 has now been altered to include a call at Cartagena, Colombia:

SECTION 2

PORT ARRIVAL DEPARTURE REMARKS
Flight to San Francisco, Mar. 19 Mar. 20 Embark California 24:00 Passengers C

Los Angeles, California Mar. 22 Mar. 22 Passengers B 08:00 24:00 re-board

San Lucas, Mexico Mar. 25 Mar. 25
07:00 13:00

Acapulco, Mexico Mar. 27 Mar. 27
08:00 19:00

Puerto Queztal, Mar. 29 Mar. 29
Guatemala 08:00 20:00

Puerto Caldera, Mar. 31 Mar. 31
Costa Rica 08:00 20:00

Panama Canal Transit Apr. 2

Cartagena, Colombia Apr. 3 Apr. 3
08:00 11:00

Cozumel, Mexico Apr. 5 Apr. 5
15:00 18:30

New Orleans, Louisiana Apr. 7 Apr. 7 Disembark 09:00 Passengers
Return Flight to Apr. 8
Frankfurt, Germany

ISSUE:

Whether the transportation of passengers aboard a non- coastwise-qualified vessel on the itinerary described above constitutes a violation of 46 U.S.C. App. 289.

LAW AND ANALYSIS:

Title 46, United States Code Appendix, section 289 (46 U.S.C. app. 289, the passenger coastwise law), prohibits the transportation of passengers between points embraced within the coastwise laws of the United States, either directly or by way of a foreign port, in a non-coastwise-qualified vessel (i.e., any vessel not built in and documented under the laws of the United States and owned by persons who are citizens of the United States). For purposes of section 289, "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." 19 CFR 4.50(b).

The applicable Customs Regulations promulgated pursuant to 46 U.S.C. App. 289 are set forth in title 19, Code of Federal Regulations, section 4.80a (19 CFR 4.80a). Section 4.80a(b)(2), Customs Regulations, provides that a coastwise violation occurs if a passenger is on a voyage to one or more coastwise points and a nearby foreign port or ports (but at no other foreign port) and the passenger disembarks at a coastwise port other than the port of embarkation. Section 4.80a(b)(3), Customs Regulations, provides that no coastwise violation occurs if a passenger is on a voyage to one or more coastwise ports and a distant foreign port or ports (whether or not the voyage includes a nearby foreign port or ports) and the passenger disembarks at a coastwise port provided the passenger has proceeded with the vessel to a distant foreign port.

A distant foreign port is defined as any foreign port that is not a nearby port. 19 CFR 4.80a(a)(3). A nearby foreign port is defined as:
any foreign port in North America, Central America, the Bermuda Islands, or the West Indies (including the Bahama Islands, but not including the Leeward Islands of the Netherlands Antilles, i.e., Aruba, Bonaire, and Curacao). A port in the U.S. Virgin Islands shall be treated as a nearby foreign port. 19 CFR 4.80a(2).

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.

Therefore, the transportation of Passengers C from San Francisco to New Orleans (via Cartagena, Colombia), would not constitute a violation of 46 U.S.C. App. 289 because the passengers will have made a voyage between coastwise points which includes a call at a "distant foreign port".

HOLDING:

The transportation of passengers aboard a non-coastwise- qualified vessel who embark at San Francisco, travel with the vessel to Cartagena, Colombia, and disembark at New Orleans, is in compliance with 46 U.S.C. App. 289.

We apologize for the inconvenience this change in itinerary has caused you; however, we are bound by statute and may only set aside the prohibition of 46 U.S.C. App. 289 in the interest of national defense. If you are planning any future cruises, please do not hesitate to contact us again.

Sincerely,

B. James Fritz

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