VES-3-02 CO:R:IT:C 112208 MAR
R. Taylor
Operations Department
Rice, Unruh, Reynolds Co.
115 Chestnut Street
Philadelphia, PA 19106
RE: Passenger Coastwise Law; 46 U.S.C. App. 289
Dear Mr. Taylor:
This is in reference to your letter dated April 9, 1992,
concerning the proposed transport of passengers.
FACTS:
Two non-coastwise-qualified vessels, the Fyodor Dostoyevsky
and the Maxim Gorkiy, will arrive in the United States with
passengers boarded in Europe, and make a series of sightseeing
calls at U.S. ports. At one U.S. port in each schedule there
will be some passengers disembarking and some passengers
embarking, but all embarkees will continue onboard to either the
Azores or South America.
ISSUE:
Whether the use of foreign-built, foreign-documented
vessels, intended to transport passengers embarking in Europe and
disembarking in the United States, the Azores or South America,
or embarking in the United States and disembarking in the Azores
or South America, and making a series of sightseeing calls at
intermediate U.S. ports, is prohibited by the coastwise trade
laws.
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 (i.e., a coastwise-qualified vessel).
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 $200.00 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." See 19 CFR 4.50(b).
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.
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
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 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.
The focus of section 289 is on the route of the vessel.
Turning to the case at hand, you propose two schedules for the
transportation of passengers on non-coastwise-qualified vessels:
1.) Passengers will embark in Europe, make a series of
sightseeing calls at intermediate U.S. ports, and will disembark
at either one port in the U.S., the Azores, or South America; or
2.) Passengers will embark at one port in the U.S., make a
series of sightseeing calls at intermediate U.S. ports, and will
disembark at either the Azores or South America. Under either
scenario, there will be no violation of 289 provided that the
vessels do not transport any passengers between U.S. ports, with
the exception of going ashore temporarily to take sight-seeing
excursions.
HOLDING:
The use of foreign-built, foreign-documented vessels
intended to transport passengers embarking in Europe and
disembarking in the United States, the Azores or South America,
or embarking in the United States and disembarking in the Azores
or South America, and making a series of sightseeing calls at
intermediate U.S. ports is not prohibited by the coastwise laws.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch