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HQ 116409

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March 3, 2005

VES-3-19-RR:IT:EC 116409 IDL

CATEGORY: CARRIER

Captain Michael M. Lever
President
Icarus Aviation Ltd. dba Lever Diving
Nautilus Explorer
P.O. Box 2256 VMPO
Vancouver, BC V6B 3W2
Canada

RE: 46 U.S.C. App. § 289; 19 CFR § 4.80a

Dear Capt. Lever:

This is in response to your letter, dated February 10, 2005, concerning the Passenger Vessel Services Act. Our ruling on this matter follows.

FACTS:

Nautilus Explorer (“Nautilus”) owns and operates the M/V NAUTILUS EXPLORER, a 116-foot Canadian-flagged long-range dive boat. Nautilus would like to embark passengers in San Diego, California, on two separate occasions, for three days of diving in Mexican waters before returning to San Diego. The passengers would be embarked and disembarked at the same location in San Diego.

The NAUTILUS EXPLORER will be transiting south from Vancouver, British Columbia, Canada without passengers, and arriving in San Diego on approximately September 21, 2005. Nautilus proposes the following two cruise itineraries:

Trip 1: On the evening of September 22, 2005, passengers will board the vessel. The vessel will enter Mexican waters in the early hours of September 23, arriving on station at Guadelupe Island, Mexico on the evening of September 23 to conduct three days of dive operations, before sailing north again on the evening of September 26. The vessel will enter U.S. waters late afternoon on September 27 and disembark in San Diego that evening.

Trip 2: On the evening of September 28, 2005, passengers will board the vessel. The vessel will enter Mexican waters in the early hours of September 29, arriving on station at Guadelupe Island, Mexico on the evening of September 29 to conduct three days of dive operations before sailing north again on the evening of October 2nd. The vessel will enter U.S. waters late afternoon on October 3rd and disembark in San Diego that evening. The vessel will then transit south to Cabo San Lucas, BCS, Mexico.

ISSUE:

Whether the use of a Canadian-flagged passenger vessel in transporting passengers from one U.S. port to a Mexican port for diving in Mexican waters and back to the same location at the original U.S. port would constitute a violation of 46 U.S.C. App. § 289?

LAW AND ANALYSIS:

U.S. Customs and Border Protection (CBP) enforces various navigation laws that deal with the use of vessels in what is recognized as coastwise trade. Included among these laws is the Act of June 19, 1986, as amended (24 Stat. 81; 46 U.S.C. App. § 289, sometimes called the coastwise passenger law, or the Passenger Vessel Services Act (PVSA)), which 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 $300 for each passenger so transported and landed.

Under section 4.80a(b)(2), CBP Regulations (19 CFR 4.80a(b)(2)), the CBP Regulations promulgated pursuant to 46 U.S.C. App. § 289, a foreign-flag vessel which embarks a passenger at a coastwise port is in violation of the PVSA if the passenger is on a voyage to one or more coastwise ports and a “nearby foreign port”, but at no other foreign port, and the passenger disembarks at a coastwise port other than the port of embarkation. Pursuant to 19 CFR 4.80a(a)(2), a nearby foreign port “means any foreign port in North America, Central America, the Bermuda Islands, or the West Indies.”

In the itineraries described above, no violation of 46 U.S.C. App. § 289 would occur, because both trips would involve only one U.S. port (San Diego), which is the same port of embarkation/disembarkation, and a nearby foreign port (Guadelupe Island, Mexico).

HOLDING:

The use of a Canadian-flagged passenger vessel in transporting passengers from one U.S. port to a Mexican port for diving in Mexican waters and back to the same location at the original U.S. port would not violate 46 U.S.C. App. § 289.

Sincerely,

Glen E. Vereb
Chief

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