Coastwise Trade; Passengers; Foreign-Flag Cruise Ships; 46U.S.C. App.  289

HQ 114332 April 23, 1998 VES-3-02-RR:IT:EC 114332 GEV CATEGORY: Carriers Capt. Gunstein Langset Port Captain Ship Operations Norwegian Cruise Line 7665 Corporate Center Drive Miami, Florida 33126 RE: Coastwise Trade; Passengers; Foreign-Flag Cruise Ships; 46 U.S.C. App.  289 Dear Capt. Langset: This is in response to your letter dated April 9, 1998, requesting a ruling on a cruise itinerary proposed by Norwegian Cruise Line. Our ruling on this matter is set forth below. FACTS: Norwegian Cruise Line operates foreign-flag cruise ships (Bahamas/Panama) and nine passenger vessels sailing worldwide. The proposed itinerary in question would last 10 or 11 days and would have Honolulu, Hawaii, as the point where passengers would both begin and end the cruise. Included as a port of call with Hawaiian ports other than Honolulu would be Fanning Island, Republic of Kiribati. The itinerary will be as follows: Port Country Honolulu USA Kona USA At Sea At Sea Fanning Island Republic of Kiribati At Sea At Sea Hilo USA - 2 - Lahaina USA Nawiliwili USA Honolulu USA ISSUE: Whether the transportation of passengers aboard a foreign-flag vessel on the cruise itinerary described above constitutes a violation of 46 U.S.C. App.  289. LAW AND ANALYSIS: Title 46, United States Code Appendix,  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  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  4.80a, Customs Regulations (19 CFR  4.80a). 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. (see 19 CFR  4.80a(a)(1)(2)(3) and (4) for the definitions of the terms "coastwise port," "nearby foreign port," "distant foreign port," "embark," and "disembark," as those terms are used in the regulation) In regard to the proposed cruise itinerary, the term "distant foreign port," for purposes of  4.80a, is defined in paragraph (a)(3) of that section as "any foreign port that is not a nearby [foreign] port." "Nearby foreign ports" are specified in paragraph (a)(2) of  4.80a. As Fanning Island is not so specified, it follows that it is a "distant foreign port," as that term is used in  4.80a of the Regulations. Accordingly, since the passengers on the proposed cruise itinerary would embark at a coastwise point (Honolulu) on a voyage to several coastwise points in Hawaii and a distant foreign port (Fanning Island), and return to their original point of embarkation (Honolulu) to disembark, the cruise would be in accord with  4.80a(b)(3). - 3 - HOLDING: The transportation of passengers aboard a foreign-flag vessel on the cruise itinerary described above does not constitute a violation of 46 U.S.C. App.  289. Sincerely, Jerry Laderberg Chief Entry Procedures and Carriers Branch