Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. §§ 4.50(b) and 4.80a; 50 Fed. Reg. 26981; disembark

HQ H027917 May 20, 2008 VES-3-02-OT:RR:BSTC:CCI H027917 LLB CATEGORY: Carriers Ms. Hiroko Yamagishi NYK Cruises, Operations Division Yusen Building, 3-2, Marunouchi 2-chome Chiyoda-ku, Tokyo, Japan RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. §§ 4.50(b) and 4.80a; 50 Fed. Reg. 26981; disembark Dear Ms. Yamagishi: This letter is in response to your May 9, 14, and 16, 2008, correspondences concerning the application of 46 U.S.C. § 55103 to a proposed cruise itinerary on a foreign-flag vessel as well the coastwise transportation of three of the individuals mentioned therein. Our decision follows. FACTS The cruise passengers in question are currently aboard the MS ASUKA II (the “vessel”) on which they embarked in Japan in April 2008. Part of the remainder of the proposed cruise itinerary is as follows: June 9, 2008 New York, New York June 16, 2008 New Orleans, Louisiana June 23, 2008 Puntarenas, Costa Rica (passengers will leave the vessel for overland excursion and fly to San Francisco, California) June 30, 2008 San Francisco, California (passengers will rejoin the vessel) July 5-6, 2008 Honolulu, Hawaii (passengers will disembark the vessel and fly back to Japan) In addition, three of the vessel's hotel division employees, including one general manager and two hotel management trainees will embark in San Francisco and disembark in Honolulu. The foregoing individuals are being transported for the purpose of determining what hotel supplies will be needed for the following cruise season. In addition, the hotel management trainees will be trained in hotel operations for service in the upcoming cruise season aboard the vessel. ISSUES 1. Whether the use of a non-coastwise qualified vessel in the cruise itinerary described above constitutes an engagement in the coastwise trade in violation of 46 U.S.C. § 55103. 2. Whether the individuals described in the FACTS section are “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). 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. See 33 C.F.R. § 2.22(a)(2)(2008). The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103 which provides: (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- (1) is wholly owned by citizens of the United States for purposes of engaging in coastwise traffic; (2) 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. The Customs and Border Protection (“CBP”) Regulations, promulgated under the authority of 46 U.S.C. § 55103, define “passenger” as: . . .any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business. 19 C.F.R. § 4.50(b). Further, the CBP regulations provide 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. Issue 1 With respect to the subject cruise passengers, the threshold question is whether the passengers who temporarily leave the vessel in Puntarenas, Costa Rica and rejoin the vessel in San Francisco, California will be considered to have “disembarked” the vessel in Puntarenas and “embarked” the vessel in San Francisco, as those terms are defined in the CBP regulations. In this regard, we note that the terms “embark” and “disembark” for purposes of § 4.80a, are defined in paragraph (a)(4) of that section, which provide: Embark means a passenger boarding the 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. (emphasis in original). The regulatory history to 19 C.F.R. § 4.80a(a)(4), as amended provides, in pertinent part: The terms “embark” and “disembark” are trade words of art which normally mean going on board a vessel for the duration of a specific voyage 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 number of hours during a voyage. It has been determined that the use of the terms in the statutory language “so transported and landed” means [] final and permanent disembarking . . . Customs Regulations Amendments Relating to Passengers on Foreign Vessels Taken on Board and Landed in the United States, 50 Fed. Reg. 26981 (July 1, 1985)(internal Attorney General Opinion citations omitted); Treas. Dec. 85-109. Thus, based on the regulatory history to 19 C.F.R. § 4.80a, a passenger is considered “disembarked” from a vessel when the passenger “finally and permanently” leaves the vessel at the conclusion of the specific voyage. Accordingly, although the passengers will be leaving the vessel in Puntarenas, Costa Rica they will be rejoining the vessel in San Francisco to continue the voyage. As such, the passengers will not be considered disembarked in Puntarenas because they will not be “finally and permanently” leaving the vessel because the voyage concludes in Honolulu. Consequently, the passengers rejoining the vessel in San Francisco would not be considered embarked in San Francisco. Therefore, the facts as presented to us as it relates to the cruise passengers would not give rise to a violation of 46 U.S.C. § 55103. Issue 2 You state that the three subject individuals from the vessel's hotel management division will be transported on the vessel for the purpose of determining hotel supplies that will be needed for the following cruise season and to train the vessel's hotel management trainees in hotel operations for service in the upcoming cruise season aboard the vessel. In this context, and in accordance with previous Headquarters’ rulings, workmen, technicians, or observers transported by vessel between ports of the United States are not classified as “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b), if they are required to be on board to contribute to the accomplishment of the operation or navigation of the vessel during the voyage or are on board because of a necessary vessel ownership or business interest during the voyage. HQ 101699 (Nov. 5, 1975); see also HQ 116721 (Sept. 25, 2006) quoting HQ 101699. In the present case, to the extent the individuals would be engaged in any shipboard activities while traveling on the foreign vessel between coastwise ports, that would be “directly and substantially” related to the operation or business itself, as would be the case under the facts herein submitted, such individual would not be considered passengers.  We find that such individuals are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Accordingly, the coastwise transportation of such individuals is not in violation of 46 U.S.C. § 55103. HOLDING 1. The use of a non-coastwise qualified vessel in the cruise itinerary described above does not constitute an engagement in the coastwise trade in violation of 46 U.S.C. § 55103. 2. The subject three individuals described above are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 C.F.R. § 4.50(b). Therefore, the coastwise transportation of such individuals is not in violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch