HQ H011367 - Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. §§ 4.50(b) and 4.80a; 50 Fed. Reg. 26981; disembark - United States International Trade Commision Rulings

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HQ H011367

May 23, 2007

VES-3-02-OT:RR:BSTC:CCI H011367 LLB

CATEGORY: CARRIER

Ms. Hiroko Yamagishi
NYK Cruises, Operations Division
Yusen Building, 3-2, Marunouchi 2-chome
Chiyoda-ku, Tokyo, Japan

RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. §§ 4.50(b) and 4.80a; 50 Fed. Reg. 26981; disembark

Dear Ms. Yamagishi:

This letter is in response to your May 17, 2007, correspondence concerning the application of 46 U.S.C. § 55103 to a proposed cruise itinerary on a foreign-flag vessel. Our decision follows.

FACTS

The passengers in question are currently aboard the MS ASUKA II (the “vessel”) on which they embarked in Japan on April 2007. The remainder of the proposed cruise itinerary is as follows:

May 25, 2007 Dublin, Ireland (passengers would leave the vessel and fly to the United States, specifically, New York)

June 2-3, 2007 New York (the passengers would rejoin the vessel)

June 6, 2007 Nassau, Bahamas

June 8, 2007 Cozumel, Mexico

June 11, 2007 Puerto Limon, Costa Rica

June 18, 2007 Cabo San Lucas, Mexico

June 21-22, 2007 San Francisco, California (some of the passengers would leave the vessel and fly to Vancouver, Canada)

June 25, 2007 Vancouver, Canada (passengers would rejoin the vessel to return to Japan)

ISSUE

Whether the use of a non-coastwise qualified vessel in the cruise itinerary described above constitutes an engagement in the coastwise trade in violation of 46 U.S.C. § 55103.

LAW and ANALYSIS

Generally, the coastwise laws prohibit the transportation of passengers or merchandise between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States. Such a vessel, after it has obtained a coastwise endorsement from the U.S. Coast Guard, is said to be “coastwise qualified.”

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. § 55103

Recodified by Pub. L. 109-304, enacted on October 6, 2006. which provides:

(a) In General. Except as otherwise provided in this chapter or chapter 121 of this title, a vessel may not transport passengers between ports or places in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel- (1) is wholly owned by citizens of the United States for purposes of engaging in coastwise traffic; (2) has been issued a certificate of documentation with a coastwise endorsement under chapter 121 or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement. (b)Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed.

The Customs and Border Protection (“CBP”) Regulations, promulgated under the authority of 46 U.S.C. § 55103, define “passenger” as:

. . .any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business.

19 C.F.R. § 4.50(b). Further, the CBP regulations provide 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 C.F.R. § 4.80a(a)(1)-(3)(defining “coastwise port”, “nearby foreign port”, and “distant foreign port”, respectively). The terms “embark” and “disembark” are defined in 19 C.F.R. § 4.80a(a)(4), infra.

With respect to the subject cruise itinerary, the threshold question is whether the passengers who temporarily leave the vessel in Dublin, Ireland and rejoin the vessel in New York will be considered to have “disembarked” the vessel in Dublin and “embarked” the vessel in New York, as those terms are defined in the CBP regulations. In addition, the foregoing itinerary raises the question of whether the passengers who temporarily leave the vessel in San Francisco and rejoin the vessel in Vancouver will be considered to have “disembarked” the vessel.

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, which provide:

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.

(emphasis in original). The regulatory history to 19 C.F.R. § 4.80a(a)(4), as amended provides, in pertinent part:

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 [] final and permanent disembarking . . .

Customs Regulations Amendments Relating to Passengers on Foreign Vessels Taken on Board and Landed in the United States, 50 Fed. Reg. 26981 (July 1, 1985)(internal Attorney General Opinion citations omitted); Treas. Dec. 85-109. Thus, based on the regulatory history to 19 C.F.R. § 4.80a, a passenger is considered “disembarked” from a vessel when the passenger “finally and permanently” leaves the vessel at the conclusion of the specific voyage.

Accordingly, although the passengers will be leaving the vessel in Dublin, Ireland, they will be rejoining the vessel in New York to continue the voyage. As such, the passengers will not be considered disembarked in Dublin because they will not be “finally and permanently” leaving the vessel because the voyage concludes in Japan. Consequently, the passengers rejoining the vessel in New York would not be considered embarked in New York. Further, with regard to the subject passengers that will not be rejoining the vessel at the coastwise point where they will be temporarily going ashore, e.g. San Francisco, the subject passengers will reboard at Vancouver for the completion of the specific voyage, which ends in Japan. Therefore, the subject passengers will not be considered to have “disembarked” in San Francisco. Consequently, the facts as presented to us would not give rise to a violation of 46 U.S.C. § 55103.

HOLDING

The use of a non-coastwise qualified vessel in the cruise itinerary described above does not constitute an engagement in the coastwise trade in violation of 46 U.S.C. § 55103.

Sincerely,

Glen E. Vereb
Chief

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