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

HQ H151895 March 7, 2011 VES-3-02-OT-RR:BSTC:CCI H151895 GOB CATEGORY: Carriers Marcia Chandler Holland America Line 300 Elliott Avenue West Seattle, WA 98119 RE: Coastwise Transportation; 46 U.S.C. § 55103; 19 CFR § 4.80a(b) Dear Mr. Chandler: This letter is in response to correspondence of March 3, 2011 with respect to the coastwise transportation of an individual. Our ruling is set forth below. FACTS: You ask whether an individual may be transported on the non-coastwise-qualified M/S OOSTERDAM (the “vessel”). You describe the proposed transportation as follows: “He will be leaving on May 3 from San Diego to Vancouver, B.C., followed by a 1 day sail from Vancouver B.C. to Seattle departing Vancouver on May 7.” ISSUE: Whether the proposed transportation will result in 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. 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. 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), 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. The proposed transportation is not a transportation within the scope of 46 U.S.C. § 55103 and 19 CFR § 4.80a(b)(1)-(3). Therefore, the proposed transportation will not result in a violation of 46 U.S.C. § 55103. HOLDING: The proposed transportation will not 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