Coastwise passenger law; 46 U.S.C. App. 289

HQ 112353 July 22, 1992 VES-3-02 CO:R:IT:C 112353 GFM CATEGORY: Carriers Dr. Sharon W. Cooper, M.D. Department of the Army Womack Army Medical Center Fort Bragg, North Carolina 26307-5000 RE: Coastwise passenger law; 46 U.S.C. App. 289 Dear Dr. Cooper: This is in reference to your letter of July 9, 1992, concerning your plans to travel on board a non-coastwise- qualified vessel. You state that you plan to board a foreign flag vessel, the VIKING SERENADE, during its second docking in San Diego, California, on August 4, 1992, for a trip to an undisclosed destination. As schedule changes have forced you to board this vessel from a coastwise point different from that of the vessel's original departure, you inquire as to whether such activity must be sanctioned by our office. 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. Turning to the case at hand, as the focus of section 289 is on the route of the vessel, the legality of your proposed voyage will depend not upon your point of coastwise embarkation, but upon your point of coastwise disembarkation. There is no requirement of written permission from our office for such a voyage, and the point from which a passenger boards a vessel for such coastwise purposes is inconsequential. With respect to passengers traveling aboard non-coastwise- qualified vessels, however, it is well established that if a passenger embarks onboard a vessel at one coastwise point and disembarks at another, without traveling to a foreign destination, a violation of section 289 will occur. In your letter, you state that you are to traveling to speak at a medical conference, but you neglected to state whether the meeting will be held in the U.S. or foreign. If your plans involve embarkation at San Diego, California, and disembarkation (i.e. end your journey) at another point within the U.S. coastwise waters, a clear violation of section 289 would result. Should you require further assistance, please do not hesitate to contact our office. Sincerely, B. James Fritz Chief Carrier Rulings Branch