Coastwise Trade; 46 U.S.C. § 55103; Cruise Itinerary; 19 CFR § 4.80a(b)(1)

HQ H063216 June 4, 2009 VES-3-02-RR:BSTC:CCI H063216 GOB CATEGORY: Carriers Alex Laurentes Operations Manager TF Marine, Inc. 1001 North America Way Suite 213 Miami, FL 33132 RE: Coastwise Trade; 46 U.S.C. § 55103; Cruise Itinerary; 19 CFR § 4.80a(b)(1) Dear Mr. Laurentes: This letter is in reply to your correspondence of June 3, 2009 concerning a cruise itinerary. Our ruling is set forth below. FACTS: You request a ruling with respect to the transportation of passengers on a cruise itinerary on the German-flagged M/V CAP DEUTSCHLAND (the “vessel”) between January 5, 2011 and January 19, 2011. The vessel and the passengers’ itinerary are as follows. The passengers will embark from Los Angeles on January 5, 2011 and the vessel will make the following stops: San Diego, CA; San Francisco, CA; Hilo, Hawaii; and Kahului, Hawaii. The passengers will disembark in Honolulu, Hawaii on January 19, 2011. ISSUE: Whether the transportation of passengers on a non-coastwise-qualified vessel on the itinerary described above constitutes a violation of 46 U.S.C. § 55103? 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. A vessel that is built in, documented under the laws of, and owned by citizens of the United States, and which obtains a coastwise endorsement from the U.S. Coast Guard, is referred to as "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. The coastwise law applicable to the carriage of passengers is found in 46 U.S.C. § 55103 (recodified by Pub. L. 109-304, enacted on October 6, 2006) and provides that: (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- is wholly owned by citizens of the United States for purposes of engaging in the coastwise traffic; and 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. Section 4.50(b), Customs and Border Protection (“CBP”) Regulations (19 CFR § 4.50(b)) provides as follows: A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of such vessel, her navigation, ownership, or business. Section 4.80a(b), CBP Regulations (19 CFR § 4.80a(b)) provides in pertinent part that: The applicability of the coastwise law (46 U.S.C. § 55103) to a vessel not qualified to engage in the coastwise trade (i.e., either a foreign-flag vessel or a U.S.-flag vessel that is foreign-built or at one time has been under foreign flag) which embarks a passenger at a coastwise port is as follows: . . . (1) If the passenger is on a voyage solely to one or more coastwise ports and the passenger disembarks or goes ashore temporarily at a coastwise port, there is a violation of the coastwise law. A coastwise port is a "port in the U.S., its territories, or possessions embraced within the coastwise laws." 19 CFR § 4.80a(a)(1). Section 4.80a(a)(4), CBP Regulations (19 CFR 4.80a(a)(4)) provides that: 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. [Emphasis in original.] The proposed itinerary must be analyzed through an application of the preceding laws and regulations. In view of the fact that the transporting vessel is German-flagged, it is non-coastwise-qualified. The vessel’s itinerary falls within the scope of 19 CFR § 4.80a(b)(1) in that it would be engaged in a voyage to one or more coastwise ports (all of the stops on the itinerary are coastwise ports) and the subject passengers will disembark the vessel at a coastwise port. Pursuant to 19 CFR § 4.80a(b)(1), there is a violation of the coastwise law (46 U.S.C. § 55103) with respect to each passenger going ashore in this situation. The penalty is assessed against the carrier in the amount of $300 for each passenger illegally transported. HOLDING: The transportation of the passengers on the subject cruise itinerary constitutes a violation of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch