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HQ 113893

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April 28, 1997

VES-3-02-RR:IT:EC 113893 GOB

CATEGORY: CARRIER

James R. Pierson
Operations Manager
Waldron Steamship Co., Ltd.
Pier One Control Tower
Honolulu, Hawaii 96813-4911

RE: 46 U.S.C. App. 289, 877; 4.80a(a)(3), (b)(1) and (b)(3); Midway Islands

Dear Mr. Pierson:

FACTS:

This is in response to your facsimile transmission dated March 26, 1997, in which you state:

We are agents for cruise ship principals who have posed the following question. "Can we embark passengers at Honolulu, Hawaii, call a few other ports in Hawaii, then call Midway and return to Honolulu to disembark these same passengers." In this respect, can Midway be considered a distant foreign port as referred to in C.R. 4.80a(3) & 4.80b(3), thereby not violating the Jones Act.

ISSUE:

Whether the Midway Islands are a "distant foreign port" as that term is defined in 19 CFR 4.80a(a)(3) such that 19 CFR 4.80a(b)(3) would be applicable to the itinerary described above.

LAW AND ANALYSIS:

The coastwise laws generally apply to points in the territorial sea, which is defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and to points located in internal waters, landward of the territorial sea baseline.

The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. App. 289 and 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 a penalty of $200 for each passenger so transported and landed.

19 CFR 4.80a is one of the regulatory provisions which serves to implement 46 U.S.C. App. 289.

19 CFR 4.80a(a)(3) provides:

(3) Distant foreign port means any foreign port that is not a nearby foreign port.

With respect to a non-coastwise-qualified vessel which embarks a passenger at a coastwise port, 19 CFR 4.80a(b)(3) provides:

(3) If the 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, there is no violation of the coastwise law provided the passenger has proceeded with the vessel to a distant foreign port.

The Midway Islands are a territory of the United States. Accordingly, the Midway Islands are not a distant foreign port within the meaning of 19 CFR 4.80a(a)(3) because they are not a foreign port, i.e., they are a United States territory.

Thus, 19 CFR 4.80a(b)(3) is not applicable to the itinerary described in your letter.

We note additionally that, pursuant to 46 U.S.C. App. 877, the coastwise laws are applicable to island territories and possessions of the United States. Thus, the coastwise laws are applicable to the Midway Islands.

19 CFR 4.80a(b)(1) is applicable to the proposed itinerary. That regulation provides, with respect to a non-coastwise-qualified vessel which embarks a passenger at a coastwise port:

(1) If the passenger is on a voyage solely to one or more coastwise ports and the passenger disembarks or goes ashore temporarily at a coastwise port, there is a violation of the coastwise law.

HOLDINGS:

The Midway Islands are not a distant foreign port within the meaning of 19 CFR 4.80a(a)(3) because they are not a foreign port, i.e., they are a United States territory.

Thus, 19 CFR 4.80a(b)(3) is not applicable to the itinerary proposed in your letter.

19 CFR 4.80a(b)(1) is applicable to the itinerary proposed in your letter.

Sincerely,

Jerry Laderberg,
Acting Chief,

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