VES-3-CO:R:IT:C 112039 GEV
Thomas Jenkins
Operations Manager
Paxton, Shreve & Hays, Inc.
Post Office Box 82237
2191 Main Street
San Diego, California 92138
RE: Coastwise Trade; Passengers; Cruise; 46 U.S.C. App. 289
Dear Mr. Jenkins:
This is in response to your letter dated December 11, 1991,
on behalf of Kloster Cruise Limited, attaching an itinerary for
a proposed cruise of the M/V SOUTHWARD. Your letter was
forwarded to the Carrier Rulings Branch, Customs Headquarters,
for direct response. Our ruling on this matter is set forth
below.
FACTS:
The M/V SOUTHWARD is a non-coastwise-qualified vessel owned
and operated by Kloster Cruise Limited. The proposed itinerary
for the cruise under consideration is as follows:
DATE DAY PORT ARRIVE DEPART
5-11-92 Monday Los Angeles 2000
5-12-92 Tuesday San Diego 0800 1700
5-12-92 Tuesday San Diego 1800
5-13-92 Wednesday San Diego 0600
5-13-92 Wednesday Catalina 1200 1200
5-13-92 Wednesday San Diego 1700 1800
- 2 -
5-13-92 Wednesday Ensenada 2130 2230
5-14-92 Thursday San Diego 0800 1600
5-15-92 Friday Los Angeles 0800
In regard to the above itinerary, it is noted that on May
13, 1992, certain passengers that embarked in Los Angeles may
spend the day in San Diego while the vessel cruises to the
Catalina Islands. None of the passengers will get off at the
Catalina Islands and those that spent the day in San Diego will
return to the vessel at its anchorage in San Diego harbor via
ships tender's (either life boats off the ship or a water taxi).
Furthermore, after departure from Ensenada, Mexico, the
vessel intends to anchor outside San Diego on May 14, 1992, at
0800 hours to observe the America's Cup race. No crew or
passengers would be allowed to go ashore. The vessel would then
depart on May 14, 1992, at 1600 hours destined for Los Angeles
where the passengers will disembark.
ISSUE:
Whether the transportation of passengers aboard a non-
coastwise-qualified vessel on the cruise described above
constitutes a violation of 46 U.S.C. App. 289.
LAW AND ANALYSIS:
Title 46, United States Code Appendix, section 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 section 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))
Section 4.80a(b)(2), Customs Regulations (19 CFR
4.80a(b)(2); copy enclosed), promulgated pursuant to 46 U.S.C.
App. 289, provides that a coastwise violation occurs if a
passenger is on a voyage to one or more coastwise points 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. (see 19 CFR 4.80a(a)(1)(2) and (4) for the
definitions of the terms "coastwise port," "nearby foreign port,"
"embark," and "disembark," as those terms are used in the
regulation)
- 3 -
In regard to the proposed cruise itinerary, the passengers
will embark and disembark at the same coastwise port (Los
Angeles) with intervening stops in San Diego and Ensenada,
Mexico. Accordingly, there would be no violation of 46 U.S.C.
App. 289 in regard to the use of the M/V SOUTHWARD on the
proposed itinerary.
In regard to the use of the vessel's life boats in
transporting passengers from a point on shore to the vessel's
anchorage in San Diego harbor, assuming, arguendo, that they are
not coastwise-qualified, we note that their use for this purpose
would not be in violation of 46 U.S.C. App. 289 provided they
arrive in U.S. territorial waters on board the cruise vessel, are
used solely to carry the passengers between the shore and the
cruise vessel, are used solely in such carriage where the
District Director of Customs is satisfied that it is not safe or
feasible for the cruise vessel to berth at a pier, and depart
U.S. territorial waters on board the cruise vessel. Absent any
one of these conditions, the transportation of passengers by a
non-coastwise-qualified life boat between the cruise vessel in
U.S. territorial waters and a point on shore would be in
violation of 46 U.S.C. App. 289. (Customs rulings 106114, 109025
and 111391)
We note that in the event a water taxi is used to transport
passengers between the cruise vessel and a point on shore instead
of the vessel's life boats as discussed above, it would have to
be coastwise-qualified.
It should also be noted that although the proposed cruise
involves no violation of the passenger coastwise law, the vessel
would still be required to report its arrival and make formal
entry of the vessel upon its return to San Diego pursuant to 19
U.S.C. 1433(a)(1)(B) and 19 U.S.C. 1435, respectively. We
suggest you contact San Diego Customs regarding the specifics of
these procedures.
HOLDING:
The transportation of passengers aboard a non-coastwise-
qualified vessel on the cruise discussed above does not
constitute a violation of 46 U.S.C. App. 289.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch
Enclosure