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HQ H022508

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January 29, 2008

VES-3-02-OT:RR:BSTC:CCI H022508 JLB

CATEGORY: CARRIER

Mr. Bruce Swartz
Waldron Norton Lilly International
521 Ala Moana Blvd., Suite 255
Honolulu, Hawaii 96825

RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 4.80a

Dear Mr. Swartz:

This letter is in response to your correspondence dated January 28, 2008, in which you request a ruling on whether passengers temporarily leaving the vessel and then rejoining at a different coastwise point constitutes a violation of 46 U.S.C. § 55103. Our ruling on your request follows.

FACTS

The non-coastwise-qualified M/V EUROPA (“the vessel”) wishes to offer its passengers two different excursions. One group of passengers, who embarked in Acapulco, Mexico, will get off the vessel at Nawiliwili, Hawaii on January 31, 2008 and rejoin the vessel at the port of Honolulu, Hawaii the next day. These passengers would then continue on the cruise until they disembark on April 20, 2008 in Dubai. The second group of passengers wishes to leave the vessel in Honolulu, Hawaii on February 1, 2008 and re-board in Lahaina, Hawaii the following day. These passengers embarked at Barcelona, Spain and will also disembark the vessel at the port of Dubai on April 20, 2008.

ISSUE

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

LAW AND ANALYSIS

The coastwise passenger statute, former 46 U.S.C. App. § 289 recodified as 46 U.S.C. § 55103, pursuant to P.L. 109-304 (October 6, 2006), states that no foreign vessel shall transport passengers “between ports or places in the United States to which the coastwise laws apply, either directly or by way of a foreign port,” under a penalty of $300 for each passenger so transported and landed. See also 19 C.F.R. § 4.80(b)(2). 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 CBP Regulations promulgated pursuant to 46 U.S.C. § 55103 are found at 19 C.F.R. § 4.80a. These regulations provide guidelines for determining whether the movement of passengers between two coastwise points is considered coastwise trade. “Embark” is defined as a “passenger boarding a vessel for the duration of a specific voyage.” See 19 C.F.R. § 4.80a(a)(4). A passenger does not "disembark" if they merely go ashore temporarily at a coastwise port so long as they re-board the vessel before it leaves for a foreign port. See 19 C.F.R. § 4.80a(a)(4). A passenger only "disembarks" from the vessel if the passenger “finally and permanently" leaves the vessel at the conclusion of the specific voyage. See Headquarters Decision 112208, dated June 29, 1992.

In the present case, the coastwise passenger statute is inapplicable to the subject voyage as the passengers are being transported by vessel between two foreign ports; i.e. embarking in either Acapulco, Mexico or Barcelona, Spain and disembarking in Dubai. Engaging in a temporary sightseeing tour on shore does not constitute disembarkation. CBP has previously held passengers leaving a vessel temporarily at one intermediate U.S. port, who then re-board at the next port of call and continue the cruise until the conclusion of the specific voyage will not have “embarked” or “disembarked” from the vessel. See Headquarters Decision 112386, dated July 22, 1992; Headquarters Decision H011367, dated May 23, 2007; see also Headquarters Decision 115095, dated July 18, 2000; Headquarters Decision 114831, dated October 14, 1999. Accordingly, since the passengers will be rejoining the vessel in Hawaii before it continues its voyage, they will not be considered to have “disembarked.” Consequently, as the facts are presented, there is no 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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