Coastwise Transportation; 46 U.S.C. § 55103

HQ H034282 July 29, 2008 VES-3-02-OT:RR:BSTC:CCI H034282 JLB CATEGORY: Carriers Mr. George J. Fowler, III Fowler Rodriguez Valdes-Fauli 400 Poydras Street, 30th Floor New Orleans, Louisiana 70130 RE: Coastwise Transportation; 46 U.S.C. § 55103 Dear Mr. Fowler: This letter is in response to your correspondence dated July 25, 2008, in which you request a ruling on whether the itineraries described below, which have been necessitated by the temporary closure of the Mississippi River, constitute a violation of 46 U.S.C. § 55103. Our ruling on your request follows. FACTS On July 23, 2008, the M/V TINTOMARA collided with a 61’ barge carrying approximately 400,000 gallons of fuel oil on the Mississippi River near New Orleans. The fuel oil spilled into the river resulting in the closure of the Mississippi River from New Orleans to the Gulf of Mexico, an area of approximately 115 miles. By order of the New Orleans Captain of the Port, all vessels were prohibited from entering this designated safety zone. Carnival Corporation (“Carnival”) operates a regularly scheduled five-day cruise out of New Orleans aboard the non-coastwise-qualified M/S FANTASY (“the vessel”). Upon researching the vessel’s itinerary, we understand that the passengers ordinarily embark and disembark in New Orleans, with stops in Progreso, located in the Yucatan Peninsula, Mexico and Cozumel, Mexico. Given that the vessel was at sea at the time of the river closure, Carnival disembarked the passengers at the closest port to New Orleans, Mobile, Alabama on July 26, 2008 and returned them to New Orleans via buses. Additionally, Carnival chose to make arrangements to continue the regularly scheduled cruise despite the river’s closure. Accordingly, passengers waiting in New Orleans for the next five-day cruise were transported aboard buses to Mobile and embarked the vessel on July 26, 2008. Rather than disembarking the passengers in Mobile upon conclusion of the cruise on July 31, 2008, however, you wish to disembark the passengers in New Orleans. You assert that while the passengers boarded the vessel in Mobile, they actually started their voyage in New Orleans when they boarded the buses, and accordingly, Carnival would have transported the passengers from and to New Orleans. You also assert that your request to disembark the passengers at New Orleans rather than Mobile is based on safety and humanitarian concerns. These include that the passengers will likely have already scheduled their flights out of New Orleans, there are difficulties and discomfort associated with a bus ride to catch their flights, and unnecessary hardships may result to the elderly, disabled or other special needs passengers. Accordingly, you seek a waiver of any potential fines resulting from disembarking passengers at ports other than the port of embarkation. ISSUE 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? LAW AND ANALYSIS The coastwise passenger statute, former 46 U.S.C. App. § 289 recodified as 46 U.S.C. § 55103, pursuant to P.L. 109-304 (October 6, 2006), states that no foreign vessel shall transport passengers “between ports or places in the United States to which the coastwise laws apply, either directly or by way of a foreign port,” under a penalty of $300 for each passenger so transported and landed. See also 19 C.F.R. § 4.80(b)(2). 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. Since 19 C.F.R. § 177.1(a)(1) only permits a binding ruling to address prospective transactions, we cannot issue a ruling regarding the voyage that disembarked the passengers on July 26, 2008. Pursuant to 19 C.F.R. § 177.1(a)(2)(ii), a completed transaction may not be the subject of a ruling request. As for the itinerary regarding the disembarkation of the passengers at New Orleans on July 31, 2008, U.S. Customs and Border Protection (“CBP”) has promulgated regulations to the coastwise passenger statute at 19 C.F.R. § 4.80a that provide guidelines for determining whether the movement of passengers between two coastwise points is considered coastwise trade. Pursuant to 19 C.F.R. § 4.80a(b)(2), if a passenger, on a non-coastwise qualified vessel, takes 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.” Embark is defined as “a passenger boarding a vessel for the duration of a specific voyage.” See 19 C.F.R. § 4.80a(a)(4). A passenger does not "disembark" if they merely go ashore temporarily at a coastwise port then re-board the vessel and sail from the port. See 19 C.F.R. § 4.80a(a)(4). A passenger only "disembarks" from the vessel if the passenger “finally and permanently" leaves the vessel at the conclusion of the specific voyage. See Headquarters Ruling Letter 112208, dated June 29, 1992. In researching the cruise itinerary in question, we understand that the passengers embarked at Mobile, Alabama, traveled to several ports including Progreso, located in the Yucatan Peninsula, Mexico and Cozumel, Mexico and Carnival proposes that they disembark in New Orleans, Louisiana. The applicable regulations define a “nearby foreign port” as “any foreign port in North America, Central America, the Bermuda Islands, or the West Indies (including the Bahama Islands, but not including the Leeward Islands of the Netherlands Antilles, i.e. Aruba, Bonaire, and Curacao).” See 19 C.F.R. § 4.80a(a)(2). Consequently, the transportation of passengers who embarked at a coastwise point to travel only to nearby foreign ports and disembarked at a coastwise point other than the point of embarkation would be a violation of 46 U.S.C. § 55103. CBP has specifically held that the Yucatan Peninsula, Mexico and Cozumel, Mexico are nearby foreign ports. See Headquarters Ruling Letter 112158, dated May 20, 1992; Headquarters Ruling Letter 112233, dated June 30, 1992. Accordingly, your proposed itinerary constitutes a violation of 46 U.S.C. § 55103. The navigation laws (including 46 U.S.C. § 55103) can only be waived under the authority provided by 46 U.S.C. § 501. This statute provides, in pertinent part, that: [w]hen the head of an agency responsible for the administration of the navigation or vessel-inspection laws considers it necessary in the interest of national defense, the individual may waive compliance with those laws to the extent, in the manner, and on the terms the individual prescribes. [Emphasis added] Since it is readily apparent that the case in question is not related to national defense, a waiver is unavailable. Consequently, the coastwise transportation under consideration is in violation of 46 U.S.C. § 55103. HOLDING 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. Sincerely, Glen E. Vereb, Chief Cargo Security, Carriers and Immigration Branch