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HQ 113112





September 29, 1994

VES-3-02/07-CO:R:IT:C 113112 BEW

CATEGORY: CARRIER

District Director of Customs
San Francisco, California

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

Dear Sir:

This is in response to the e-mail message dated May 19, 1994, from Inspector Freitas, requesting a ruling on behalf of Silversea Cruises concerning the application of the Jones Act to a proposed cruise itinerary on the SILVER CLOUD, a foreign flag vessel, as set forth below.

FACTS:

The letter states that the vessel will call at the port of San Francisco direct from foreign on November 26, 1994, and discharge some of the passengers. The vessel will clear for Los Angeles on November 27, 1994, with residue passengers. On November 28, 1994, the vessel will call at the port of Monterey, California, whereby approximately fifty passengers will temporarily leave the vessel for an overland excursion to the Hearst Castle. On the same day these passengers will re-board the vessel at the Port of San Luis Obispo, California. The SILVER CLOUD will then proceed to Los Angeles where the subject passengers will disembark from the vessel and clear Customs.

ISSUE:

Whether there is a violation of 46 U.S.C. App. 289 if passengers are allowed to temporarily leave a foreign-flag vessel, arriving from a distant foreign port, at an intermediate U.S. port for a short period of time (several hours), re-board the vessel at the next U.S. port of call and cruise with the vessel to the port of disembarkation 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.) The question regarding the subject 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: . . . (28 O.A.G 204, dated February 26, 1910; 29 O.A.G. 318, dated February 12, 1912; 30 O.A.G 44, dated February 1, 1913; 36 O.A.G. 352, dated August 13, 1930)

We conclude from the background statement, 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.

With regard to the itinerary of the SILVER CLOUD, if the passengers temporarily leave the vessel at the port of Monterey, California, and re-board at the port of San Luis Obispo, there would not be a violation of section 289 provided that they 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 the distant foreign port, to the port of disembarkation, Los Angeles. When the subject passengers (approximately 50) temporarily leave the vessel, they must retain their accommodations. The vessel operator must not use those accommodations for any other persons while the passengers are away from the vessel, they must have the right to leave any part of their possessions in their berths while they are temporarily away from the vessel, and the cost of the complete voyage of their passage must include the time that the passengers 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 re-boards the vessel at the next port of call, cruising to the conclusion of the specific voyage and disembarks from the vessel at the end of the voyage, 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 the vessel for the purposes of 46 U.S.C. App. 289, when they temporarily leave the vessel at a coastwise port for a sightseeing tour of the Hearst Castle, provided they re-board 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 disembarkation, and provided further that their accommodations are not used for any other persons while they are temporarily away from the vessel.

Sincerely,

Arthur P. Schifflin

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