VES-3-02 CO:R:IT:C 112386 GFM

R. Taylor
Operations Department
Rice, Unruh, Reynolds Co.
115 Chestnut Street
Philadelphia, PA 19106

RE: Addendum to Headquarters Ruling Letter 112208

Dear Mr. Taylor:

This is in reference to your letter dated June 23, 1992, requesting comment on an issue pursuant to the above referenced ruling.

In your letter, you inquire as to whether it would be possible for passengers joining the MAXIM GORKIY in Port Everglades, Florida, to spend the night on board the vessel at berth, participate the following day in an overland excursion to Tampa, Florida, and then rejoin the vessel in Tampa where they will depart foreign.

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.

Regarding the proposal at hand, passengers joining the MAXIM GORKIY in Port Everglades, Florida, who wish to spend the night on board the vessel at berth, and then leave the next day on an

overland excursion to Tampa, where they would rejoin the vessel and continue onboard through the remainder of the schedule will not violate the coastwise laws.

Sincerely,

B. James Fritz
Chief
Carrier Rulings Branch