VES-3-06-CO:R:IT:C 112233 MLR

Ruediger Steinbacher
Managing Director
Delphin Seereisen GmbH
Blumenstrasse 20
6050 Offenbach a/m
Germany

RE: 46 U.S.C. app. 289; Coastwise Trade; Passengers; Foreign- Flag Vessel; Go Ashore Temporarily; Embark; Disembark; MS KAZAKHSTAN

Dear Mr. Steinbacher:

This is in response to your facsimile dated June 15, 1992, requesting a ruling as to whether a proposed cruise itinerary is in compliance with 46 U.S.C. app. 289. Our ruling is set forth below.

FACTS:

The MS KAZAKHSTAN is a Ukrainian-flag vessel. The proposed voyage will be operated in three different sections and passengers will be embarking and disembarking at different ports (we categorize the passengers in groups as "Passengers A - E"). The proposed cruise itinerary is as follows:

SECTION 1 Cruise Dates: February 22 - March 20, 1993 Auckland, New Zealand to San Francisco, California

PORT ARRIVAL DEPARTURE REMARKS Flight from Frankfurt, Embark Germany, to Feb. 22 Feb. 24 Passengers Auckland, New Zealand 20:00 A & B

Noumea, New Caledonia Feb. 27 Feb. 28 08:00 11:00

Vila, Vanuatu Mar. 1 Mar. 1 09:00 19:00

Suva, Fiji Mar. 3 Mar. 3 08:00 17:00

Apia, W. Samoa Mar. 4 Mar. 4 08:00 17:00

Kiritmati (Christmas) Mar. 8 Mar. 8 08:00 13:00

Kahului (Maui), Hawaii Mar. 11 Mar. 11 13:00 21:00

Hilo (Hawaii), Hawaii Mar. 12 Mar. 12 08:00 22:00

San Francisco, Mar. 18 Disembark California 08:00 Passengers A; Passengers B temporarily leave vessel

Passengers A will take a return flight to Frankfurt, Germany. Passengers B will leave the vessel at San Francisco, take a tour to Las Vegas, Nevada, and re-board the vessel at Los Angeles, on March 22, 1993. We assume that Passengers B will continue on to New Orleans, or to Bremerhaven, Germany.

SECTION 2 Cruise Dates: March 20 - April 4, 1993 San Francisco, California to New Orleans, Louisiana

PORT ARRIVAL DEPARTURE REMARKS Flight to San Francisco, Mar. 19 Mar. 20 Embark California 24:00 Passengers C

Los Angeles, California Mar. 22 Mar. 22 Passengers B 08:00 24:00 re-board

San Lucas, Mexico Mar. 25 Mar. 25 07:00 13:00

Acapulco, Mexico Mar. 27 Mar. 27 08:00 19:00

Puerto Queztal, Mar. 29 Mar. 29 Guatemala 08:00 20:00

Puerto Caldera, Mar. 31 Mar. 31 Costa Rica 08:00 20:00

Panama Canal Transit Apr. 2 George Town, Apr. 4 Apr. 4 Grand Cayman 08:00 ?

Cozumel, Mexico Apr. 5 Apr. 5 13:00 18:00

New Orleans, Louisiana Apr. 7 Apr. 7 Disembark 09:00 Passengers B & C Return Flight to Apr. 8 Frankfurt, Germany

SECTION 3 Cruise Dates: April 9 - May 2, 1993 New Orleans, Louisiana to Bremerhaven, Germany

PORT ARRIVAL DEPARTURE REMARKS Flight to New Orleans, Apr. 8 Apr. 9 Embark Louisiana 20:00 Passengers D & E

Nassau, Bahamas Apr. 12 Apr. 12 08:00 24:00

St. George, Bermuda Apr. 15 Apr. 15 08:00 18:00

Wilmington, Apr. 18 Apr. 18 Passengers E Delaware 08:00 15:00 temporarily leave vessel

Passengers E will leave the vessel at Wilmington, Delaware, on April 18, 1993, and take a tour to Washington, D.C., and re- board at New York, New York, on April 19, 1993.

New York, New York Apr. 19 Apr. 20 Passengers E 08:00 24:00 re-board

Faial, Azores Apr. 26 Apr. 26 08:00 20:00

Cherbourg, France Apr. 30 Apr. 30 07:00 13:00

Amsterdam, May 1 May 1 The Netherlands 08:00 18:00

Bremerhaven, Germany May 2 Disembark 08:00 Passengers B, D, & E

ISSUE:

Whether the transportation of passengers aboard a non- coastwise-qualified vessel on the itinerary described above constitutes a violation of 46 U.S.C. app. 289.

LAW AND ANALYSIS:

Title 46, United States Code Appendix, section 883 (the merchandise coastwise law often called the "Jones Act") prohibits the transportation of merchandise between United States coastwise points, either directly or via a foreign port, or for any part of the transportation, 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.

In interpreting section 883, Customs has ruled that a point in United States territorial waters is a point in the United States embraced within the coastwise laws. The territorial waters of the United States consist of the territorial sea, defined as the belt, 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.

Title 46, United States Code Appendix, section 289 (46 U.S.C. app. 289, the passenger coastwise law), prohibits the transportation of passengers between points embraced within the coastwise laws of the United States, either directly or by way of a foreign port, in a non-coastwise-qualified vessel (i.e., any vessel not built in and documented under the laws of the United States and owned by persons who are citizens of the United States). For purposes of section 289, "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." {19 CFR 4.50(b)}.

The applicable Customs Regulations promulgated pursuant to 46 U.S.C. app. 289 are set forth in title 19, Code of Federal Regulations, section 4.80a (19 CFR 4.80a). Section 4.80a(b)(2), Customs Regulations {19 CFR 4.80a(b)(2)}, provides that a coastwise violation occurs if a passenger is on a voyage to one or more coastwise points 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. Section 4.80a(b)(3), Customs Regulations {19 CFR 4.80a(b)(3)}, provides that no coastwise violation occurs if a passenger is on a voyage to one or more coastwise ports and a distant foreign port or ports (whether or not the voyage includes a nearby foreign port or ports) and the passenger disembarks at a coastwise port provided the passenger has proceeded with the vessel to a distant foreign port.

Section 4.80a(a)(3) of the Customs Regulations defines a distant foreign port as any foreign port that is not a nearby port. 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). A port in the U.S. Virgin Islands shall be treated as a nearby foreign port. {19 CFR 4.80a(2)}.

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.

Therefore, 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.

In regard to the proposed cruise itinerary:

Passengers A: The transportation of Passengers A who embark at Auckland, New Zealand, and disembark at San Francisco, California, would not constitute a violation of the passenger coastwise law because the passengers do not embark at a coastwise port.

Passengers B: The transportation of Passengers B who embark at Auckland, New Zealand, leave the vessel temporarily at San Francisco, California, to take a tour to Las Vegas, Nevada, and re-board at Los Angeles, California, to continue on to New Orleans, Louisiana, or Bremerhaven, Germany, would not constitute a violation of the passenger coastwise law because the passengers do not embark at a coastwise port. Further, when the passengers temporarily leave the vessel at San Francisco, and re-board at Los Angeles, there would not be a violation of section 289 provided that they have booked passage for the entire voyage and cruise to the conclusion of the specific voyage. When the passengers temporarily leave the vessel, they must also retain their accommodation. The vessel operator must not use those accommodations for any other persons while they are away from the vessel, and the passengers must have the right to leave any part of their possessions in their berth while they are temporarily away from the vessel. The cost of the complete voyage of their passage must include the time that they are away from the vessel.

Passengers C: The transportation of Passengers C who embark at San Francisco, California, and disembark at New Orleans, Louisiana (via Los Angeles, California; San Lucas, Mexico; Acapulco, Mexico; Puerto Queztal, Guatemala; Puerto Caldera, Costa Rica; Panama Canal; George Town, Grand Cayman; and Cozumel, Mexico) would constitute a violation of the passenger coastwise law because the passengers have made a voyage between coastwise points which included only a call at "nearby foreign ports" in violation of 19 CFR 4.80a(b)(2).

Passengers D: The transportation of Passengers D who embark at New Orleans, Louisiana, and disembark at Bremerhaven, Germany would not constitute a violation of the passenger coastwise law because the passengers have not disembarked at a coastwise port.

Passengers E: The transportation of Passengers E who embark at New Orleans, Louisiana, leave the vessel temporarily at Wilmington, Delaware, to take a tour to Washington, D.C., and re- board at New York, New York, to continue on to Bremerhaven, Germany, would not constitute a violation of the passenger coastwise law because the passengers have not disembarked at a coastwise port. (See discussion above concerning Passengers B, for conditions).

HOLDING:

The transportation of passengers aboard a non-coastwise- qualified vessel on the itinerary described above does not constitute a violation of 46 U.S.C. app. 289 with the exception of the transportation of Passengers C.

If you have any further questions, please contact Monika Rice at (202) 566-5706.

Sincerely,

B. James Fritz
Chief
Carrier Rulings Branch