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HQ 115467

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November 5, 2001

VES-3-02-RR:IT:EC 115467 RSD

CATEGORY: CARRIER

Ms. Lisa Brown
Reservation Supervisor
Norwegian Cruise Line
7665 Corporate Center Drive
Miami, Florida 33126

RE: Coastwise Trade; Passengers; Foreign-Flag Cruise Ships; 46 U.S.C. App. § 289; 19 CFR 4.80a(b)

Dear Ms. Brown:

This is in response to your letter dated August 21, 2001, requesting a ruling on a cruise itinerary proposed by Norwegian Cruise Line. Our ruling on this matter is set forth below.

FACTS:

Norwegian Cruise Line operates foreign-flag cruise ships. The proposed itinerary that you describe will consist of two consecutive sailings. The first cruise will last for seven days from Sunday to Sunday. The itinerary for the first cruise will be as follows:

Seattle, WA at sea
Juneau, Alaska
Skagway, Alaska
Cruise Glacier Bay
Ketchikan, Alaska
Cruise the inside passage
Vancouver

The second cruise will last ten days from Sunday to the following Wednesday. The itinerary for the second cruise will be as follows:

Vancouver, Canada at sea (5) days
Hilo, Hawaii
Nawiliwili, Hawaii
Lahaina, Hawaii
Kona, Hawaii
Honolulu

ISSUE:

Whether the transportation of passengers aboard a foreign-flag vessel on the cruise itinerary described above constitutes a violation of 46 U.S.C. App. § 289.

LAW AND ANALYSIS:

Title 46, United States Code Appendix, § 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 § 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 § 4.80a, Customs Regulations (19 CFR § 4.80a). Section 4.80a(b)(3), Customs Regulations (19 CFR §4.80a(b)(3)), 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. (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).

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 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 reboards the vessel and departs with it on sailing from the port.

In the administration of the above-cited regulation, Customs has held that, “...passengers temporarily leaving the vessel at one intermediate United States port for a brief tour of a few days duration and rejoining the vessel at another intermediate United States port will not have ‘disembarked’ from the vessel.” (Customs Ruling Letter 108124, dated February 13, 1986.)

The term “distant foreign port,” for purposes of § 4.80a, is defined in paragraph (a)(3) of that section as “any foreign port that is not a nearby [foreign] port.” “Nearby foreign ports” are specified in paragraph (a)(2) of 4.80a.

In regard to the proposed cruise itinerary, we will assume that the same passengers will continue on both sailings from Seattle, Washington, on through to Honolulu, Hawaii. The embarking on a non-coastwise-qualified vessel at Seattle, Washington (a coastwise point) and disembarking at Honolulu, Hawaii (also a coastwise point) with an intervening stop at Vancouver, Canada (a nearby foreign port) would constitute a violation of 19 CFR § 4.80a(b)(2) as discussed above. However, we note that if the two cruises were conducted separately so that on the first cruise, the passengers embark in Seattle (a coastwise point) and disembark in Vancouver (nearby foreign port) there would not be a violation of the coastwise laws. Similarly, if on the second cruise, passengers, which were not on the first cruise, embark in Vancouver (a nearby foreign port) and disembark in Honolulu (a coastwise point), there would not be a violation of the coastwise laws.

HOLDING:

The use of a non-coastwise-qualified vessel for the transportation of passengers in the above-described itinerary is violative of 46 U.S.C. App. § 289.

Sincerely,

Larry L. Burton
Chief

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