VES-3-02/07-CO:R:IT:C 111673 BEW
Mr. Michael J. Brown
4084 Carroll Boulevard
University Heights, Ohio 44118
RE: Coastwise Trade; Passengers; Foreign-Flag Vessel; Embark;
Disembark; Go Ashore Temporarily; 19 CFR 4.80a; 46 U.S.C.
App. 289
Dear Mr. Brown:
This is in response to your letter dated May 3, 1991,
addressed to Senator Howard M. Metzenbaum, requesting a ruling
concerning the application of the Jones Act to a proposed cruise
itinerary on a foreign flag vessel as set forth below.
FACTS:
The letter states that you and your wife have been awarded a
one time only trip to the Ohio State University Alumni
Association tour "Springtime Americana" which originates in New
York City on May 16, 1991, and returns to New York City on
May 30, 1991. The itinerary which you submitted shows that you
will be cruising on a foreign-flag vessel, the ROYAL VIKING SUN.
You would embark on the subject vessel at the port of New York on
May 16, 1991. The vessel cruises from New York to Baltimore,
Maryland, where the passengers will go ashore temporarily for a
tour of Baltimore and a day at the Preakness Horse Race. On
May 19, 1991, the vessel will depart Baltimore and sail to
Hamilton, Bermuda, a nearby foreign port. The vessel will be at
sea on May 22, 1991, will call at the ports of Charleston, South
Carolina, and Savannah, Georgia, at sea for a day, will call at
Fort Lauderdale, Florida, at sea for two days, and will conclude
its voyage at the port of New York on May 30, 1991, where the
passengers will disembark from the vessel.
During the cruise, the passengers would presumably go ashore
temporarily to take sight-seeing excursions at the said
intermediate U.S. ports of call.
You state that on May 26, 1991, your son is graduating from
Cornell University, in Ithaca, New York. You and your wife
request permission to leave the vessel temporarily when it
arrives at the port of Savannah, Georgia, on May 25, 1991, to
attend your son's graduation. You state that after attending
your son's graduation, you and Mrs. Brown will fly to Fort
Lauderdale, Florida, where you will re-board the vessel and
cruise with it to the port of New York where you will disembark
from the vessel.
ISSUE:
Whether there is a violation of 46 U.S.C. App. 289 if
passengers are allowed to temporarily leave a foreign-flag vessel
at an intermediate U.S. port for a short period of time (2 days),
re-board the vessel at the next U.S. port of call and cruise with
the vessel to the port of embarkation where the passengers will
disembark from the vessel.
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.)
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.
Customs has ruled that if passengers embark at a coastwise
point and either disembark (see the definitions of "embark" and
"disembark" set forth below 19 CFR 4.80a(a)(4)) or go ashore
temporarily to take sight-seeing excursions at an intermediate
U.S. port there would be no violation of section 289 if they are
allowed to remain on shore at the intermediate U.S. port for an
extended period of time (e.g., several days), but are on board
when the vessel leaves the United States port for a distant
foreign port. Transportation from the distant foreign port to
the port of original embarkation would not be a coastwise
transportation of passengers for purposes of section 289. 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.
The threshold question regarding your tour is whether a
passenger "disembarks" from the vessel as that term is defined in
the Customs Regulations, when the passenger leaves the vessel
temporarily at one port of call, re-boards at the next port of
call, and continues to the conclusion of the specific voyage.
Section 4.80a(a)(4) defines embark and disembark 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 re-boards the vessel and departs
with it on sailing from the port.
In the background portion of the Federal Register notice
(50 FR 126 (1985)) which published the final rule that amended
section 4.80a (a)(4) to include the above stated language, it is
stated that:
The terms "embark" and disembark" are trade
words of art which normally mean going on
board a vessel for the duration of a
specific voyage and leaving a vessel at the
conclusion of a specific voyage. In this
normal context the words do not contemplate
temporary shore leave for any specific number
of hours during a voyage. It has been
determined that the use of the terms in the
amendment will follow the intent of Congress
and clarify the scope of the regulations.
That the statutory language "so transported
and landed" means the final and permanent
disembarking is further shown by the
following Attorney General Opinions:...
Without citing the Attorney General Opinions set forth in the
background, we conclude that a passenger would not have
"disembarked" from the vessel if the passenger does not "finally
and permanently" leave the vessel until the conclusion of the
specific voyage.
If you and Mrs. Brown temporarily leave the vessel at the
port of Savannah, Georgia, and reboard at the port of Fort
Lauderdale, Florida, there would not be a violation of section
289 provided that you have booked passage for the entire voyage
and cruise to the conclusion of the specific voyage.
Specifically, the passage must be booked from the port of
embarkation, in this case New York, to the port of disembarkation
also New York. When you and your wife temporarily leave the
vessel, you must retain your accommodation. The vessel operator
must not use those accommodations for any other persons while
you are away from the vessel, you must have the right to leave
any part of your possessions in your berth while you are
temporarily away from the vessel, and the cost of the complete
voyage of your passage must include the time that you and your
wife are away from the vessel.
Under such circumstances, if a passenger temporarily
departs from a foreign-flag vessel at a United States port of
call for a brief period, and reboards the vessel at the next
port of call, cruising to the conclusion of the specific voyage
and disembarking from the vessel at the port of embarkation, the
passenger will not be considered as having "disembarked" from the
vessel during the temporary absence and there would be no
violation of 46 U.S.C. App. 289.
HOLDING:
The subject passengers will not be considered to have
disembarked from a vessel for the purposes of 46 U.S.C. App. 289,
when they temporarily leave the vessel at a coastwise port for
two days, provided they reboard the vessel at another coastwise
port on the itinerary for which they booked passage continue
with the vessel to the conclusion of the voyage, and disembark at
the port of embarkation, and provided further that their
accommodations are not used for any other persons while they are
temporarily away from the vessel.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch
cc: Cleveland Office of Senator Howard M. Metzenbaum
District Director, Savannah
District Director, Miami
Port Director, Fort Lauderdale
Area Director, New York Seaport
Kloster Cruise Limited (FAX 305-444-3415)