Coastwise Trade; Foreign-Flag Cruise Vessel; Bus Transportation Between Intermediate U.S. Ports; 46 U.S.C. App. § 289

HQ 114831 October 14, 1999 VES-3-02-RR:IT:EC 114831 GEV CATEGORY: Carriers Alkis Scourtellis Managing Director Navitrans Shipping Agencies Inc. 407 Mcgill Street Suite 800 Montreal, Quebec, Canada H2Y 2G3 RE: Coastwise Trade; Foreign-Flag Cruise Vessel; Bus Transportation Between Intermediate U.S. Ports; 46 U.S.C. App. § 289 Dear Mr. Scourtellis: This is in response to your letter dated October 4, 1999, on behalf of your principals, Messrs. Companie Des Iles Du Ponant, requesting a ruling on a proposed cruise itinerary. Our ruling on this matter is set forth below. FACTS: The MV LE LEVANT is a foreign-flag cruise vessel that will be successfully completing its inaugural cruise season on the U.S. East Coast and Great Lakes. As a result, U.S. travel agents have shown added interest in the vessel’s year 2000 Great Lakes itinerary, requesting increased calls at U.S. ports. The proposed round trip itinerary would last seven days and would be as follows: Port Country Chicago USA Mackinac Island USA * Traverse City USA Frankfort USA Saugatuck USA Toronto Canada Chicago USA * At Traverse City the passengers will leave the vessel to be transported by bus to Frankfort where they will reboard the vessel to continue the voyage.  - 2 - The itinerary would be reversed for those passengers embarking in Toronto. Those passengers embarking at Chicago or Toronto (new voyages begin in each of those two cities) will be the only ones joining the above-referenced bus excursions and the only ones to reboard the vessel for transportation to their final destinations of Chicago or Toronto, respectively. No cruise will originate at one U.S. port and terminate at another U.S. port. 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)(2), Customs Regulations (19 CFR 4.80a(b)(2)), provides 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 at a coastwise port other than the port of embarkation, there is a violation of the coastwise law. (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) With respect to the subject cruise itinerary, the threshold question is whether the passengers who leave the vessel for the bus excursion between Traverse City and Frankfort are considered to “disembark” the vessel as that term is defined in the Customs Regulations. In this regard we note that the terms "embark" and “disembark” for purposes of § 4.80a, are defined in paragraph (a)(3) of that section 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 reboards the vessel and departs with it on sailing from the port.  - 3 - In the administration of the above-cited regulation, Customs has held that, “...passengers temporarily leaving the vessel at one intermediate United States port for a brief tour of a few days duration and rejoining the vessel at another intermediate United States port will not have ‘disembarked’ from the vessel.” (Customs Ruling Letter 108124, dated February 13, 1986) Accordingly, since the passengers on the proposed cruise itinerary would embark at a coastwise point (Chicago) on a voyage to several coastwise points and a nearby foreign port (Toronto), and return to their original point of embarkation (Chicago) to disembark, the cruise itinerary would be in accord with § 4.80a(b)(2) notwithstanding their temporarily leaving the vessel at Traverse City for a bus excursion to Frankfort were they will rejoin the vessel. 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