VES-3-02-OT:RR:BSTC:CCR HQ H247722 WRB
Mr. LeVar O. Kennings
Norwegian Cruise Line
7665 Corporate Center Drive
Miami, FL 33126
RE: Coastwise Transportation of Passengers; 46 U.S.C. § 55103; 19 C.F.R. §§ 4.50(b) and 4.80a.
Dear Mr. Kennings:
This letter is in response to your correspondence of October 3, 2013, with regard to a proposed cruise itinerary. Specifically, you inquire as to whether the vessel’s proposed port call at San Andres Island, Colombia, would constitute a voyage to a “distant foreign port,” and therefore outside the application of the coastwise laws. Our ruling is set forth below.
FACTS
The proposed itinerary consists of a fourteen (14)-day voyage departing Miami, Florida, transiting the Panama Canal, and terminating at Los Angeles, California. You present the following proposed schedule for our consideration:
DAY PORT ARRIVE DEPART
Sunday Miami, Florida Depart: 4:00PM
Monday
Tuesday
Wednesday San Andres Island, Colombia Arrive: 7:00AM - Depart: 3:00PM
Thursday Daylight Transit Panama Canal
Friday
Saturday Puntarenas, Costa Rica Arrive: 7:00AM - Depart: 6:00PM
Sunday
Monday Puerto Chiapas, Mexico Arrive: 8:00AM - Depart: 4:00PM
Tuesday Huatulco, Mexico Arrive: 8:00AM - Depart: 4:00PM
Wednesday
Thursday Puerto Vallarta, Mexico Arrive: 8:00AM - Depart: 4:00PM
Friday Cabo San Lucas, Mexico Arrive: 7:00AM - Depart: 2:00PM
Saturday
Sunday Los Angeles, California Arrive: 8:00AM
ISSUE
Whether the proposed cruise itinerary to transport passengers aboard a non-coastwise-qualified vessel would violate 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 law applicable to the carriage of passengers is found in 46 U.S.C. § 55103 (recodified by Pub. L. 109-304, enacted on October 6, 2006) and provides that:
(a) In General. Except as otherwise provided in this chapter or chapter 121 of this title, 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 traffic; 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.
(b) Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed.
Section 4.50(b), Customs and Border Protection (“CBP”) Regulations provides as follows:
A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation, navigation, ownership, or business of the vessel.
Pursuant to 19 C.F.R. 4.80a(b)(3),
If the 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, there is no violation of the coastwise law provided the passenger has proceeded with the vessel to a distant foreign port.
A “nearby foreign port” is a “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 Netherland Antilles, i.e., Aruba, Bonaire, and Curacao.” See 19 C.F.R. § 4.80a(a)(2). A “distant foreign port” is “any foreign port that is not a nearby [foreign] port.” See 19 C.F.R. § 4.80a(a)(3).
In HQ 110765 (Feb. 8, 1990), our predecessor agency, the U.S. Customs Service, examined whether Isla de San Andres could be considered a distant foreign port for the purpose of avoiding a violation of the coastwise laws by virtue of the fact that it is a colony of Colombia. In holding that Isla de San Andres was properly considered a nearby foreign port for purposes of the coastwise passenger statute, CBP determined:
The foreign port distinctions in the Customs regulations are based upon geographic considerations, not nationality or sovereignty considerations. Were we to adopt the view that Isla de San Andres is a distant foreign port because of its connection with Colombia, the same reasoning would apply to such locations as Bermuda (a British dependency) and Martinique (a department of France). The result of such a finding would be to greatly hinder meaningful administration of the coastwise passenger statute.
See also HQ 115813 (Dec. 16, 2002)(determining that ports in Panama are “nearby foreign ports” as defined in 19 C.F.R. § 4.80a for purposes of the administration of the coastwise laws).
Consistent with our holding in HQ 110765, San Andres is properly considered a nearby foreign port within the meaning of 19 C.F.R. § 4.80a(a)(2). Accordingly, the proposed cruise itinerary between Miami, Florida and Los Angeles, California would constitute a violation of 46 U.S.C. § 55103.
HOLDING
The transportation of individuals using a non-coastwise-qualified vessel on the proposed itinerary would constitute a violation of 46 U.S.C. § 55103.
Sincerely,
Lisa L. Burley
Supervisory Attorney-Advisor/Chief
Cargo Security, Carriers and Restricted Merchandise Branch
Office of International Trade, Regulations & Rulings
U.S. Customs and Border Protection