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

HQ H098475 March 25, 2010 VES-3-02-RR:BSTC:CCI H098475 GOB CATEGORY: Carriers David E. Pohorylo President New England Shipping Company, Inc. 44 Kendall Street New Haven, CT 06512 RE: Coastwise Trade; 46 U.S.C. § 55103; Cruise Itinerary; 19 CFR § 4.80a(b) Dear Mr. Pohorylo: This letter is in reply to your correspondence of March 22, 2010 concerning a cruise itinerary. Our ruling is set forth below. FACTS: You request a ruling with respect to the transportation of passengers on a voyage on the foreign-flagged M/V AMADEA (the “vessel”). The cruise itinerary is as follows. The vessel will depart from Montreal, Canada on October 5, 2010 and will make the following port calls: Quebec, Canada; Sydney, Nova Scotia; Boston, Massachusetts; the Cape Cod Canal; Newport, Rhode Island; New York, New York; Hamilton, Bermuda; Horta, Portugal; Ponta Delgada, Portugal; Funchal, Portugal; Malaga, Spain; and Barcelona, Spain. The voyage will terminate in Nice, France on October 28, 2010. With respect to the port call in New York, you state that “[c]urrent plans call for the vessel to first dock at Bayonne, NJ at 0900hrs on October 12th and then shift to Manhattan Cruise Terminal at 1700hrs also on October 12th and remain there until it departs the port at 1300hrs on October 13th. The Manhattan Cruise Terminal berth is unavailable until 1700hrs on the 12th and that is the reason for berthing in Bayonne first.” You state that certain passengers may temporarily leave the vessel in Bayonne for a port tour and rejoin the vessel at the Manhattan Cruise Terminal. 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 4.80a(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: 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. (2) If the 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. (3) If the 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, there is no violation of the coastwise law provided the passenger has proceeded with the vessel to a distant foreign port. 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). A “nearby foreign port” is defined as "any 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)." 19 CFR § 4.80a(a)(2). A “distant foreign port” is defined as “any foreign port that is not a nearby foreign port.” 19 CFR § 4.80a(a)(3). 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. The voyage will commence in Montreal, Canada and will terminate in Nice, France, with numerous port calls in the United States and other countries. We assume from the facts presented that no passenger will embark and disembark at different United States points. The crux of the matter under consideration is whether certain passengers might temporarily leave the vessel on October 12, 2010 in Bayonne, New Jersey and rejoin the vessel later that day at the Manhattan Cruise Terminal without causing the vessel to violate 46 U.S.C. § 55103. Certain applications of 46 U.S.C. § 55103 are set forth in 19 CFR § 4.80a(b), stated above, which provides guidelines as to whether certain situations involve the illegal coastwise transportation of passengers. Section 4.80a(b)(1) is not applicable here as the voyage is not solely to one or more coastwise ports. Section 4.80a(b)(2) is not applicable here for two separate reasons: the voyage includes distant foreign ports; and no passenger disembarks the vessel at a coastwise point. Temporarily going ashore does not constitute disembarkation. See the definition of “disembark” in 19 CFR § 4.80a(a)(4), above. Section 4.80a(b)(3) (which would not result in a violation of 46 U.S.C. § 55103) is not applicable as passengers are not disembarking at a coastwise port. Since, under the facts presented, no passenger will embark at one coastwise point and disembark at a different coastwise point, the subject cruise itinerary does not violate 46 U.S.C. § 55103. There is no proscription in 46 U.S.C. § 55103 or the relevant regulations which would prohibit the passengers from temporarily leaving the vessel in Bayonne, New Jersey and rejoining the vessel later that day at the Manhattan Cruise Terminal prior to the resumption of the cruise. HOLDING: The transportation described in the subject cruise itinerary does not constitute the transportation of passengers between coastwise points within the meaning of 46 U.S.C. § 55103. Sincerely, Glen E. Vereb Chief Cargo Security, Carriers and Immigration Branch