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HQ 115095

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July 18, 2000

VES-3-02-RR:IT:EC 115095 GEV

CATEGORY: CARRIER

Greta Pontarelli
25290 Lisa Marie Circle
Temecula, CA 92590

RE: Coastwise Trade; Foreign-Flag Vessel; Temporarily Leave Vessel; 46 U.S.C. App. § 289

Dear Ms. Pontarelli:

This is in response to your fax of July 11, 2000, regarding the applicability of 46 U.S.C. App. § 289 to a cruise itinerary and your plan to temporarily leave the vessel during the itinerary. Our ruling on this matter is set forth below.

FACTS:

You plan to take a cruise on the foreign-flag vessel NORWEGIAN SKY. The cruise itinerary is as follows:

July 23, 2000 – Leave Seattle at 4:00 p.m. July 27, 2000 – Arrive in Juneau, Alaska at 7:00 a.m. July 29, 2000 – Arrive in Vancouver, Canada at 1:00 p.m. July 30, 2000 – Arrive back in Seattle at 7:00 a.m.

On July 27, 2000, you plan to leave Juneau with your child and fly to Los Angeles for a medical treatment. You both will subsequently rejoin the cruise in Vancouver on July 29, 2000, for the return leg to Seattle.

ISSUE:

Whether temporarily leaving the vessel in Juneau and rejoining it in Vancouver renders the transportation of the passengers in question in violation of 46 U.S.C. App. § 289.

LAW AND ANALYSIS:

The Act of June 19, 1886, as amended (24 Stat. 81; 46 U.S.C. App. § 289, the coastwise passenger law), 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.

The applicable Customs Regulations promulgated pursuant to 46 U.S.C. App. § 289 are set forth in § 4.80a, Customs Regulations (19 CFR § 4.80a). Section 4.80a(b)(2), Customs Regulations (19 CFR § 4.80a(b)(2)), provides 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 at a coastwise port other than the port of embarkation, there is a violation of the coastwise law. (See 19 CFR §§ 4.80a(a)(1)(2)(3) and (4) for the definitions of the terms “coastwise port,” “nearby foreign port,” “distant foreign port,” “embark,” and “disembark,” as those terms are used in the regulation)

With respect to the subject cruise itinerary, the threshold question is whether the passengers who temporarily leave the vessel at Juneau are considered to “disembark” the vessel as that term is defined in the Customs Regulations. In this regard we note that the terms “embark” and “disembark” for purposes of § 4.80a, are defined in paragraph (a)(4) of that section as follows:

Embark means a passenger boarding the 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 reboards the vessel and departs with it on sailing from the port.

Although you and your child will not be rejoining the vessel at the coastwise point where you will be temporarily going ashore, we nonetheless note that in the background portion of the Federal Register notice (50 FR 125 (1985)) which published the final rule that amended § 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 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, it is our position 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.

Accordingly, since you and your child will be temporarily leaving the vessel in Juneau and reboarding at Vancouver for the completion of the round trip cruise back to Seattle, you both would not be considered to have “disembarked” in Juneau. Consequently, the facts as presented to us would not give rise to a violation of 46 U.S.C. App. § 289.

HOLDING:

Temporarily leaving the vessel in Juneau and rejoining it in Vancouver does not render the transportation of the passengers in question in violation of 46 U.S.C. App. § 289.

Sincerely,

Acting Chief

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