VES-3-02-CO:R:IT:C 112158 BEW

Dr. Paul Snyder
5519-N Highway 153
Chattanooga, TN 37343

RE: Coastwise Trade; Passengers; Cargo; Non-Coastwise-Qualified Vessel; 46 U.S.C. App. 289; 46 U.S.C. App. 883

Dear Dr. Snyder:

This is in response to your letter of December 26, 1991, concerning the use of a British built hovercraft to transport passengers, cars and freight from a port in Florida to the Yucatan in Mexico.

FACTS:

You state that the cruise itineraries are as follows:

The passengers will embark at the port of Osprey Florida at 9:15 a.m., travel to Dry Tortugas, Florida, at sea for approximately 3 hours, then to Cuba where you will load and unload passengers, at sea for approximately 2 hours, than arrive at a port in Mexico at approximately 5:00 p.m.

Another vessel will leave Mexico at 9:15 a.m. travel the above route in reverse, and arrive in Osprey, Florida at approximately 5:00 p.m.

ISSUE:

Whether the use of a non-coastwise-qualified hovercraft to transport passengers from Osprey, Florida, via the Dry Tortugas Islands of Florida, to Cuba, and to Mexico, where the passengers would disembark from the vessel, would be in violation of the coastwise passenger law, 46 U.S.C. App. 289.

LAW AND ANALYSIS:

Generally, the coastwise laws (e.g., 46 U.S.C. App. 289 and 883, and 46 U.S.C. 12106 and 12110) prohibit the transportation of merchandise or passengers between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in and documented under the laws of the United States, and owned by persons who are citizens of the United States.

The passenger coastwise law, 46 U.S.C. App. 289, 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 penalty of $200 for each passenger so transported and landed.

For purposes of the coastwise laws, a vessel "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." (Section 4.50(b), Customs Regulations.) Section 4.80a, Customs Regulations (19 CFR 4.80a) is interpretive of section 289.

In its administration of 46 U.S.C. App. 289, the Customs Service has ruled that the carriage of passengers entirely within territorial waters, even though the passengers disembark at their point of embarkation and the vessel touches no other coastwise point, is considered coastwise trade subject to coastwise laws. However, the transportation of passengers to the high seas (i.e., beyond U.S. territorial waters) and back to the point of embarkation, assuming the passengers do not go ashore, even temporarily, at another United States point, often called a "voyage to nowhere", is not considered coastwise trade. It should be noted that the carriage of fishing parties for hire, even if the vessel proceeds beyond territorial waters and returns to the point of the passenger's embarkation, is considered coastwise trade.

In interpreting the coastwise laws, Customs has ruled that a point in United States territorial waters is considered a point embraced within the coastwise laws. The coastwise laws generally apply to points in the territorial sea, defined as the belt, three (3) nautical miles wide, seaward of the territorial sea baseline, and to points located in internal waters, landward of the territorial sea baseline, in cases where the baseline and the coastline differ.

If a passenger on a voyage to a distant foreign port embarks at a coastwise point and goes ashore temporarily to take sight seeing excursions at an intermediate U.S. port there is no violation provided that the passenger proceeds on the voyage to the distant foreign point. The relevancy of whether an intermediate foreign port is a "nearby foreign port" (as defined in 19 CFR 4.80a(a)(2)) or a "distant foreign port" (as defined in 19 CFR 4.80a(a)(3)) is crucial in determining whether or not a violation of section 289 has occurred.

The focus of section 289 is on the route of the vessel. Section 4.80a(b)(2) of the Customs Regulations (19 CFR 4.80a(b)(2) provides that, "if the passenger is on a voyage to one or more 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 point other than the port of embarkation, there is a violation of the coastwise law" (46 U.S.C. App. 289). We have ruled 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 the vessel at a nearby foreign port, or if the passengers embark and disembark at the same coastwise port, there is no violation of section 289.

In both fact patterns set forth above, the transportation of passengers on a non-coastwise-qualified vessel from a coastwise point in Florida to a port in Mexico, a nearby foreign port, where the passengers would disembark from the vessel would not be a violation of section 289. In addition, passengers may embark on a non-coastwise-qualified vessel at a port in Mexico and disembark at a port in Florida without violating section 289.

However, in your inquiry, you state that during each voyage, the vessels would travel to and from the U.S. to Mexico via a port in Cuba.

On April 18, 1992, President Bush issued a directive to the Secretary of the Treasury to issue regulations that will prohibit entry into U.S. ports of vessels that are engaged in trade with Cuba. On April 24, 1992, the Office of Foreign Assets Control published in the Federal Register (57 FR 15216) a final rule amending the Cuban Assets Control Regulations by adding a new section 515.207 (31 CFR 515.207) as follows:

Except as specifically authorized by the Secretary of the Treasury (or any person, agency or instrumentality designated by him), by means of Regulations, rulings, instructions, licenses or otherwise, no vessel carrying goods or passengers to or from Cuba or carrying goods in which Cuba or a Cuban National has an interest may enter a U.S. port.

In addition, sections 515.533 and 515.560 of the Cuban Assets Control Regulations (31 CFR 515.533 and 515.560) were also amended. (A copy of the Federal Register notice is enclosed for your information).

In view of the foregoing, at this time we are not issuing rulings on the use of a foreign-built vessel to transport passengers from a U.S. port to Cuba or from Cuba to a U.S. port. Questions relating to the Cuban Asset Control Regulations may be directed to the:

Office of Foreign Assets Control Department of the Treasury Washington, DC 20220

In addition, you state that you understand that a complete foreign manifest and all required shipper's export declarations must be filed with the district director prior to your departure. For your information, the coastwise law pertaining to the transportation of merchandise, section 27 of the Act of June 5, 1920, as amended (41 Stat. 999; 46 U.S.C. App. 883, often called the Jones Act), provides that:

No merchandise shall be transported by water, or by land and water, on penalty of forfeiture of the merchandise (or a monetary amount up to the value thereof as determined by the Secretary of the Treasury, or the actual cost of the transportation, whichever is greater, to be recovered from any consignor, seller, owner, importer, consignee, agent, or other person or persons so transporting or causing said merchandise to be transported), between points in the United States ... embraced within the coastwise laws, either directly or via a foreign port, or for any part of the transportation, in any other vessel than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States ....

"Merchandise" is defined in section 1401(c) of title 19, United States Code, to include goods, wares, and chattels of every description, and includes fish, fish products, and fish packaging materials that are assembled into packages containing fish. Section 883 specifically provides that, for purposes of its provisions, "merchandise" includes valueless material (Pub.L. 100-329; 102 Stat. 588). The transportation of valueless material, whether or not it has commercial value, from a point or place in the United States or point or place on the high seas within the Exclusive Economic Zone (EEZ) as defined in the Presidential Proclamation of March 10, 1983, to another point or place in the United States or a point or place on the high seas within that EEZ would also be prohibited under the provisions of section 883.

The prohibitions set forth in section 883 are against the use of foreign-flag or non-coastwise-qualified U.S. vessels for the transportation of the goods from port to port or point to point within the territorial waters of the United States.

HOLDING:

The transportion on a non-coastwise-qualified vessel of a passenger on a voyage to one or more coastwise ports and a nearby foreign port or ports (but at no other foreign port) would not be violative of section 289, provided the passenger disembarks from the vessel at the nearby foreign port, or the passenger embarks on and disembarks from the vessel at the same coastwise port.

Vessels entering a U.S. port from Cuba or departing a U.S. port to Cuba are subject to the provisions set forth in the Cuban Assets Control Regulations, as amended (31 CFR 515.207 et al.)

Sincerely,

B. James Fritz
Chief
Carrier Rulings Branch

Enclosure

cc: Regional Commissioner Southeast Region