VES-3-02-RR:IT:EC 116164 CK
John P. McLaughlin, Esq.
Bauer Moynihan & Johnson LLP
2101 Fourth Avenue
Suite 2400
Seattle, Washington 98121
RE: Cruise Itinerary; 46 U.S.C. App. §289
Dear Mr. McLaughlin:
This is in response to your ruling request dated February 26, 2004, on behalf of your client, Stabbert Maritime Yacht & Ship, Inc. We have considered the issue presented and our reply follows.
FACTS:
Stabbert Maritime Yacht & Ship, Inc. (“Stabbert”) intends to use the U.S.- documented, non-coastwise-qualified vessel M/Y REVELATION to conduct passenger cruises between Juneau, Alaska and Prince Rupert, British Columbia, Canada. One cruise will be eight days in length, with passengers embarking in Juneau, Alaska on day one, and disembarking in Prince Rupert, British Columbia, Canada on the eighth day. The second cruise is the reverse of the first; passengers will embark in Prince Rupert, British Columbia, Canada on the first day, and disembark in Juneau, Alaska on the eighth day. Below is the itinerary of the cruise from Juneau to Prince Rupert.
Day 1
Juneau, embark, depart for and anchor overnight outside Tracy Arm
Day 2
Visit Tracy Arm and Sawyer Glacier, and anchor overnight near Admiralty Island
Day 3
Explore Admiralty Island, cruise Frederick Sound, anchor overnight in Thomas Bay
Day 4
Visit Petersburg, anchor overnight near Zarembo Island
Day 5
Cruise waters surrounding Etolin and Wrangell, anchor overnight in Canoe Cove
Day 6
Visit Meyers Chuck, cruise Clarence Straight for Ketchikan, clear customs and anchor overnight outside Ketchikan
Day 7
Cruise Misty Fjords National Monument, anchor overnight at Rudyerd Bay
Day 8
Prince Rupert, disembark
During the cruises between Juneau and Prince Rupert, the vessel will make a series of overnight stops where it will anchor for the evening. At various points during the cruise, passengers may leave the vessel to take sightseeing and hiking excursions, lasting approximately one to three hours. To conduct shore excursions, the vessel will either dock or passengers will be transported using coastwise-qualified tenders. All ports of call will be restricted to same day sightseeing and excursions and passengers will return each evening to the vessel for overnight accommodation. Passengers may also use U.S.-built sea kayaks that are under 5 net tons for short excursions.
For each cruise, passenger bookings and hire paid will cover the entire voyage, from the port of embarkation to the port of disembarkation, including the periods of time that passengers are away from the vessel for shore excursions. Passengers accommodations will be assigned at the beginning of each cruise and these berth assignments will remain in effect for the entire duration of the voyage. Passengers will likely take cameras and other personal items on day excursions, but their baggage and other belongings will otherwise remain in their assigned staterooms aboard the vessel.
Separate groups of passengers will sail on each cruise, and upon conclusion of the cruise all passengers will permanently disembark the vessel. In other words, the two cruises will be operated separately, with no common passengers.
ISSUE:
Whether the above-described cruise itineraries for a non-coastwise vessel are violative of 46 U.S.C. App. §289.
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. A vessel that is built in, documented under the laws of, and owned by citizens of the United States, and which obtains a coastwise endorsement from the U.S. Coast Guard, is referred to as "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. App. §289 (sometimes called the “Passenger Vessel Services Act” and the “coastwise passenger statute”) and 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.
Section 4.50(b), Customs Regulations (19 C.F.R. §4.50(b)) states as follows
A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business.
The applicable Customs Regulations promulgated pursuant to 46 U.S.C. App. § 289 are set forth in § 4.80a, Customs Regulations (19 CFR § 4.80a). Section 4.80a(b)(2), Customs Regulations (19 C.F.R. §4.80a(b)(2)), provides 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.
A coastwise port is a "port in the U.S., its territories, or possessions embraced within the coastwise laws." 19 C.F.R. 4.80a(a)(1). A nearby foreign port is defined as "any foreign port in North America, Central America, the Bermuda Islands, or the West Indies (including the Bahama Islands, but not including the Leeward Islands of the Netherlands Antilles, i.e., Aruba, Bonaire, and Curacao)."
In the present case, the cruises under consideration will begin in the United States and end in Canada, and vice versa. Therefore, the cruises will not begin and end at two different coastwise ports. With respect to the passengers who temporarily leave the vessel at U.S. points for excursion activities, we note that the terms "embark" and “disembark” for purposes of § 4.80a, are defined in paragraph (a)(4) of that section as follows:
Embark means a passenger boarding a 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.
In the administration of the above-cited regulation, it is noteworthy that U.S. Customs and Border Protection (CBP) has held that, “...passengers temporarily leaving the vessel at one intermediate United States port for a brief tour of a few days duration and rejoining the vessel at another intermediate United States port will not have ‘disembarked’ from the vessel.” HQ 108124, dated February 13, 1986. See also, HQ 115106, dated September 27, 2000; and HQ 115467, dated November 5, 2001.
Accordingly, since the passengers on the proposed cruise itineraries would not embark and disembark at different coastwise points, the cruise itinerary would be in accord with § 4.80a(b)(2) notwithstanding the fact that passengers may temporarily leave the vessel at intermediate coastwise points and subsequently rejoin the vessel to resume the cruise.
HOLDING:
The use of a non-coastwise-qualified vessel for the transportation of passengers in the above-described itineraries is not violative of 46 U.S.C. App. § 289. Sincerely,
Glen E. Vereb
Chief Entry Procedures and Carriers Branch