OT:RR:BSTC:CCR H335919 DMK
Randy Jenkins
Associate Vice President, Maritime Compliance
Royal Caribbean Group
1050 Caribbean Way
Miami, FL 33132
RE: 46 U.S.C. § 55103; 19 C.F.R. § 4.80a; Coastwise Transportation; Passengers; Small Craft; Tendering.
Dear Mr. Jenkins:
This is in response to your correspondence of November 27, 2023, in which you requested a ruling determining whether the use of certain zodiac vessels to tender guests to and from a cruise vessel would violate 46 U.S.C. §§ 55102 and 55103.0F Our decision follows.
FACTS:
Royal Caribbean Group, on behalf of Hapag-Lloyd Cruises, a subsidiary company (“the Company”), owns and operates the M/V HANSEATIC SPIRIT (“the Vessel”), a non-coastwise-qualified cruise vessel registered in the Republic of Malta. The Vessel operates seasonally in Alaskan waters.
In many locations there is limited or no infrastructure available for the Vessel to safely dock. Accordingly, the Company desires to make use of non-coastwise-qualified rigid hull inflatable boats (“Zodiacs”) to tender cruise passengers between the Vessel, which will be anchored in U.S. territorial waters, and eleven specified points on land in Alaska. The Company has also requested confirmation of whether Petersburg, Alaska, previously deemed an acceptable location for tendering, remains acceptable as a location for tendering. You have received confirmation from the relevant CBP Port Director(s) that it is not safe or feasible for the Vessel to berth at a pier in these contemplated locations.
In support of your ruling request, you state that the Zodiacs would arrive in U.S. territorial waters on board the Vessel; will be used solely to carry the passengers between shore and the Vessel; and the tenders will depart U.S. territorial waters on board the Vessel.
ISSUE:
Whether use of the Zodiacs as tenders at the requested locations uses violates the coastwise laws, including 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 laws apply to the United States, including the island territories and possessions of the United States, with the exception of American Samoa, the Northern Mariana Islands, and the Virgin Islands.4F The Supreme Court discussed the nature of the United States’ jurisdiction over internal waters in United States v. Louisiana, saying, in pertinent part:
Under generally accepted principles of international law, the navigable sea is divided into three zones, distinguished by the nature of the control which the contiguous nation can exercise over them. Nearest to the nation’s shores are its inland, or internal waters. These are subject to the complete sovereignty of the nation, as much as if they were a part of its land territory, and the coastal nation has the privilege even to exclude foreign vessels altogether. Beyond the inland waters, and measured from their seaward edge, is a belt known as the marginal, or territorial, sea. Within it, the coastal nation may exercise extensive control, but cannot deny the right of innocent passage to foreign nations.3F
The Passenger Vessel Services Act, 46 U.S.C. § 55103 (“the PVSA”), provides that only coastwise-qualified vessels may transport passengers in the navigable waters in the United States, specifically:
[…] 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-
is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and
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.
The applicable regulation at 19 CFR § 4.50(b) defines a passenger as “any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business.”
In accordance with previous CBP rulings, individuals transported between coastwise points are not classified as “passengers” within the meaning of 46 U.S.C. § 55103 and 19 CFR § 4.50(b) if they are required to be onboard to contribute to the accomplishment of the operation or navigation of the vessel during the voyage or are onboard because of a necessary vessel ownership or business interest during the voyage.9F
As a preliminary matter, we determine that the cruise passengers are “passengers” within the meaning of 46 U.S.C. § 55103 and 19 CFR 4.50(b) because they are not required to be onboard for the operation or navigation of the vessel, nor because of a necessary vessel ownership or business interest. Accordingly, transportation of the cruise passengers by a non-coastwise-qualified vessel between coastwise points would violate the PVSA, 46 U.S.C. § 55103.
In interpreting the coastwise laws as applied to the transportation of passengers, CBP has consistently held 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 point, is considered coastwise trade subject to the coastwise laws. Likewise, we determine that the transaction as described above would constitute transportation between coastwise points. To determine whether transportation between coastwise points occurs, CBP examines the points at which transportation begins and ends. In the matter at hand, the Vessel will be anchored within U.S. territorial waters and passengers will be transported between the anchored Vessel and the shore in Alaska. Both points are coastwise points for the purpose of the PVSA, and the transportation of passengers would take place entirely within U. S. territorial waters. Accordingly, the transportation of cruise passengers by a non-coastwise-qualified vessel between coastwise points would violate the PVSA, 46 U.S.C. § 55103.
Because the facts as described constitute transportation of passengers between coastwise points by non-coastwise-qualified zodiacs, we next turn to whether the proposed use of the Zodiacs as tenders as described is permissible. CBP has consistently held that the use of non-coastwise-qualified vessels as tenders in U.S. territorial waters is permissible under four conditions:
the tenders must arrive in U.S. territorial waters on board the cruise vessel;
the tenders must be used solely to carry the passengers between the shore and the cruise vessel;
the tenders must be used solely in such carriage where the CBP Port Director is satisfied that it is not safe or feasible for the cruise vessel to berth at a pier; and
the tenders must depart U.S. territorial waters on board the cruise vessel.19F
In the matter at hand, you clarify that the Zodiacs will arrive in U.S. waters on board the Vessel, the Zodiacs will be used solely to transport passengers between shore and the Vessel, and the Zodiacs will depart U.S. waters on board the Vessel. The final requirement is whether the relevant Port Director(s) for the proposed tendering locations are satisfied that it is not safe or feasible for the Vessel to berth at a pier. As noted above, you have received confirmation from the relevant Port Director(s) that it is not safe or feasible for the Vessel to berth at a pier in the contemplated locations. Provided the facts as described above remain accurate, the tendering exception would apply and accordingly no violation of the PVSA, 46 U.S.C. § 55103 would occur.
In HQ 112039 (Jan. 6, 1992), we held that “[a]bsent any one of these conditions, the transportation of passengers by a non-coastwise-qualified lifeboat 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 [now 46 U.S.C. § 55103].” (citations omitted). Furthermore, CBP has strictly construed the use of non-coastwise qualified vessels as tenders to be limited to use only as a tender for the entirety of the cruise vessel’s voyage within U.S. territorial waters.20F
Therefore, assuming the four conditions above are satisfied, we determine that any Zodiacs which are used as tenders in the above-described voyages must be used solely as a tender for the entirety of the Vessel’s time within U.S. territorial waters. Specifically, while the Vessel is in U.S. territorial waters, using a Zodiac at some point for any other purpose prohibits that same Zodiac from being used as a tender until the Vessel exits U.S. territorial waters with the Zodiac on board and re-enters U.S. territorial waters.
Accordingly, we determine that, strictly under the facts as presented, the Zodiacs may be used as tenders without violating 46 U.S.C. § 55103. However, using the Zodiacs for any other purpose, only to use the same Zodiac as a tender at a later point, would violate either the Jones Act, 46 U.S.C. § 55102, or the PVSA, 46 U.S.C. § 55103, or both, depending on what is transported.
If a Zodiac has already been used for any other purpose and is intended to be used as a tender, the Vessel must depart U.S. waters with the Zodiac on board, re-enter U.S. waters with the Zodiac on board, and use the Zodiac only as a tender until such time as the Vessel departs U.S. waters again, likewise with the Zodiac on board. Similarly, if a Zodiac has been used as a tender and is intended to be used for any other purpose, the Vessel must depart U.S. waters with the Zodiac on board and re-enter U.S. waters with the Zodiac on board, at which time the Zodiac may be used for purposes other than tendering.
HOLDING:
The use of Zodiacs for tendering purposes does not violate 46 U.S.C. §55103 provided that the facts above apply.
Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a CBP field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based.” If the facts at hand vary from the facts stipulated to herein, this decision shall not be binding on CBP as provided for in 19 C.F.R. § 177(b)(1), (2) and (4), and § 177.9(b)(1) and (2).
Sincerely,
W. Richmond Beevers
Chief, Cargo Security, Carriers and Restricted Merchandise Branch
Office of Trade, Regulations and Rulings
U.S. Customs and Border Protection