Coastwise Transportation of Passengers; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b); 19 C.F.R. § 4.80a

HQ H141177 January 11, 2011 VES-3-02-RR:BSTC:CCI H141177 WRB CATEGORY: Carriers Mr. Jason Cabot P.O. Box 381017 Cambridge, MA 02238 RE: Coastwise Transportation of Passengers; 46 U.S.C. § 55103; 19 C.F.R. § 4.50(b); 19 C.F.R. § 4.80a Dear Mr. Cabot: This letter is in response to your correspondence of December 15, 2010, with respect to the proposed coastwise transportation of an individual. Pursuant to 19 CFR §§ 177.2 and 4,80a(d), our ruling is set forth below. FACTS: You present the following scenario for our consideration: A passenger will be transported on a foreign-flag, non-coastwise-qualified vessel from San Francisco, California to Vancouver, Canada, and then on to Whittier, Alaska. The vessel itinerary is as follows: San Francisco, California; Astoria, Oregon; Victoria, Canada; and, Vancouver, Canada. The subject passenger intends to depart the vessel with his luggage at Vancouver in the morning. The passenger then intends to re-board the same vessel with his luggage at Vancouver in the afternoon, having purchased a separate ticket to provide transportation to Whittier, Alaska. The vessel itinerary for the second part of the voyage is as follows: Vancouver, Canada; Ketchikan, Alaska; Juneau, Alaska; Skagway, Alaska; and, Whittier, Alaska. At the conclusion of the voyage, the passenger intends to disembark the vessel at Whittier, Alaska; returning to San Francisco by air. You state that the purpose of this travel is for leisure. You inquire as to whether there will be a violation of the pertinent statute in this situation where the passenger will be transported between two separate coastwise points on a non-coastwise-qualified vessel, having departed and re-boarded the vessel at an intermediate non-coastwise point. ISSUE: Whether the transportation on a non-coastwise-qualified vessel, as described above, is violative 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 (including points within a harbor), 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. Penalty. The penalty for violating subsection (a) is $300 for each passenger transported and landed. The Customs and Border Protection (“CBP”) Regulations promulgated pursuant to 46 U.S.C. § 55103 are found at 19 CFR §§ 4.80 and 4.80a. Section 4.80(a) provides, in pertinent part, that no vessel shall transport, either directly or by way of a foreign port, any passenger between points in the U.S. embraced within the coastwise laws, including points within a harbor, unless the vessel is coastwise-qualified. Section 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 transportation by the non-coastwise-qualified vessel must be analyzed through an application of the preceding laws and regulations. We note that 19 CFR § 4.80a(b)(3) does not apply to the proposed transportation because the subject vessel does not proceed to a distant foreign port. Vancouver, Canada is a nearby foreign port, as defined in 19 CFR § 4.80a(a)(2). In the scenario presented, the individual will embark the vessel at a U.S. point and will disembark the vessel at a different U.S. point. There is an embarkation and disembarkation at different U.S. (or coastwise) points. In the facts as you present them, a passenger on a voyage to one or more coastwise ports and a nearby foreign port or ports will disembark at a coastwise port other than the port of embarkation. This is exactly the scenario envisioned in Section 4.80a(b)(2). Accordingly, there would be a violation of the coastwise law. Therefore, based upon the fact that the passenger will embark and disembark the non-coastwise-qualified vessel at different U.S. points, the proposed transportation will result in a violation of 46 U.S.C. § 55103. HOLDING: As described above, the proposed transportation will result in a violation of 46 U.S.C. § 55103. Sincerely, George Frederick McCray Supervisory Attorney-Advisor/Chief Cargo Security, Carriers, and Immigration Branch Office of International Trade, Regulations & Rulings U.S. Customs and Border Protection