Coastwise Trade; 46 U.S.C. App. 289; Passengers; Foreign-FlagVessel; Waiver Authority

HQ 114215 February 24, 1998 VES-3-02-RR:IT:EC 114215 GG CATEGORY: Carriers Mr. Richard Knott Vice President of Strategic Planning & Product Development Premier Cruises 901 S. America Way Miami, FL 33132 RE: Coastwise Trade; 46 U.S.C. App. 289; Passengers; Foreign-Flag Vessel; Waiver Authority Dear Mr. Knott: This is in response to your facsimile, dated January 7, 1998, in which you request a waiver of the U.S. coastwise laws. Our response follows. FACTS: Premier Cruises requests approval of an itinerary for an upcoming voyage of the M/V SEABREEZE, a vessel registered in Panama. In what is described as a "one-time positioning cruise", this ship would embark passengers in Miami, visit Nassau, and then disembark the passengers in Philadelphia. ISSUE: Whether a foreign flag vessel may embark passengers at one coastwise port, sail to a nearby foreign port, and then disembark the passengers at a different coastwise port? LAW AND ANALYSIS: 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 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. 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 coastwise laws generally apply to points in the territorial sea, 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, in cases where the baseline and the coastline differ. The proposed transaction, whereby passengers would board in Miami and proceed to Nassau before disembarking in Philadelphia, is precluded by Section 4.80a(b)(2) of the Customs Regulations (19 CFR 4.80a(b)(2)). This regulation provides that there is a violation of the coastwise laws if a passenger on a voyage to one or more coastwise ports and a nearby foreign port or ports disembarks at a coastwise port other than the port of embarkation. "Coastwise port" means a port in the United States, its territories, or possessions embraced within the coastwise laws. 19 CFR 4.80a(a)(1). The definition of "nearby foreign port" includes ports in the Bahama Islands, except for the those in the Leeward Islands of the Netherlands Antilles. 19 C.F.R. 4.80a(a)(2). Applied here, there would be a clear violation if passengers were to embark in Miami, proceed to Nassau, and then sail to Philadelphia for disembarkation. Waivers of the coastwise laws are granted only for purposes of national defense or in instances where legislation enacted by Congress specifically exempts a particular vessel from the application of the navigation laws. Neither of these circumstances applies here. HOLDING: The transportation of passengers aboard a non-coastwise-qualified vessel between two coastwise ports, with one intervening visit to a nearby foreign port, is a violation of 46 U.S.C. App. 289. A request to implement such an itinerary is therefore denied. Sincerely, Jerry Laderberg Chief Entry Procedures and Carriers Branch