Coastwise Transportation of Passengers; 46 U.S.C. § 55103; 19 C.F.R. §§ 4.50(b) and 4.80a; Cruise itineraries; Bahamas; M/V VICTORY I.

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H310693 June 30, 2020 VES-3-02-OT:RR:BSTC:CCR HQ H310693 MNM CATEGORY: Carriers Mr. Eric Denley Chief Legal Counsel Victory Cruise Lines 222 Pearl Street New Albany, Indiana 47150-3468 RE: Coastwise Transportation of Passengers; 46 U.S.C. § 55103; 19 C.F.R. §§ 4.50(b) and 4.80a; Cruise itineraries; Bahamas; M/V VICTORY I. Dear Mr. Denley: This letter is in response to your April 24, 2020 ruling request with regard to three proposed cruise itineraries for M/V VICTORY I. Our ruling on your request follows. FACTS The M/V VICTORY I is a discovery-designed small cruise vessel which, despite being U.S.-built, is Bahamian-flagged, registered in Nassau, Bahamas. Beginning in April 2021, Victory Cruise Lines intends to offer new spring, and later in November 2021, winter itineraries, in the Southeast United States and the Bahamas. You present the following three (3) proposed international voyage itineraries on the M/V VICTORY I for our consideration. The first itinerary is a closed-loop, round trip, nine (9) night international voyage: Proposed Itinerary 1: Round Trip Fernandina Beach Day 1 Passenger Embarkation – Fernandina Beach / Amelia Island, Florida USA (4/5/21; 4/15/21) Day 2 Brunswick, Georgia, USA (4/6/21; 4/16/21) Day 3 Savannah, Georgia, USA (4/7/21; 4/17/21) Day 4 Charleston, South Carolina, USA (4/8/21; 4/18/21) Day 5 Beaufort, South Carolina, USA (4/9/21; 4/19/21) Day 6 Jacksonville, Florida, USA (4/10/21; 4/20/21) Day 7 At Sea (4/11/21; 4/21/21) Day 8 West Palm Beach, Florida, USA (4/12/21; 4/22/21) Day 9 Freeport, Bahamas (4/13/21; 4/23/21) Day 10 Passenger Disembark - Fernandina Beach / Amelia Island, Florida, USA (4/14/21; 4/24/21) The second and third itineraries are seven (7) night international voyages between the United States and the Bahamas: Proposed Itinerary 2: Bahamas to the United States Day 1 Passenger Embarkation - Freeport, Bahamas (11/7/21; 11/21/21; 12/05/21) Day 2 Port Canaveral, Florida, USA (11/8/21; 11/22/21; 12/06/21) Day 3 Fernandina, Florida, USA (11/9/21; 11/23/21; 12/07/21) Day 4 Charleston, South Carolina, USA (11/10/21; 11/24/21; 12/08/21) Day 5 Beaufort, South Carolina, USA (11/11/21; 11/25/21; 12/09/21) Day 6 Brunswick, Georgia, USA (11/12/21; 11/26/21; 12/10/21) Day 7 Savannah, Georgia, USA (11/13/21; 11/27/21; 12/11/21) Day 8 Passenger Disembark - Jacksonville, Florida, USA (11/14/21; 11/28/21; 12/12/21) Proposed Itinerary 3: United States to the Bahamas Day 1 Passenger Embarkation, Jacksonville, Florida, USA (11/14/21; 11/28/21) Day 2 Savannah, Georgia, USA (11/15/21; 11/29/21) Day 3 Charleston, South Carolina, USA (11/16/21; 11/30/21) Day 4 Beaufort, South Carolina, USA (11/17/21; 12/01/21) Day 5 Brunswick, Georgia, USA (11/18/21; 12/02/21) Day 6 Fernandina, Florida, USA (11/19/21; 12/03/21) Day 7 Port Canaveral, Florida, USA (11/20/21; 12/04/21) Day 8 Passenger Disembark, Freeport, Bahamas (11/21/21; 12/05/21) With regard to these three proposed itineraries, you state that passengers may temporarily depart the vessel to participate in shore excursions as long as they re-board the vessel and proceed with the vessel to the final disembarkation. ISSUES Whether the proposed “Round Trip Fernandina Beach” cruise itinerary to transport passengers aboard a non-coastwise-qualified vessel would violate 46 U.S.C. § 55103? Whether the proposed “Bahamas to the United States” cruise itinerary to transport passengers aboard a non-coastwise-qualified vessel would violate 46 U.S.C. § 55103? Whether the proposed “United States to the Bahamas” cruise itinerary to transport passengers aboard a non-coastwise-qualified vessel would violate 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 at 46 U.S.C. § 55103 which provides: (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- (1) is wholly owned by citizens of the United States for purposes of engaging in coastwise trade; and (2) 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. Section 4.50(b) of the Customs and Border Protection (“CBP”) Regulations provides: A passenger within the meaning of this part is any person carried on a vessel who is not connected with the operation of the vessel, her navigation, ownership, or business. Section 4.80(b)(2) of the CBP Regulations provides: The penalty imposed for the unlawful transportation of passengers between coastwise points is $300 for each passenger so transported and landed on or before November 2, 2015, and $812 for each passenger so transported and landed after November 2, 2015 (46 U.S.C. 55103, as adjusted by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015). Section 4.80a(b), CBP Regulations (19 C.F.R. § 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. (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. A coastwise port is a “port in the U.S., its territories, or possessions embraced within the coastwise laws.” 19 C.F.R. § 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)." (Emphasis added). 19 C.F.R. § 4.80a(a)(2). A “distant foreign port” is defined as “any foreign port that is not a nearby foreign port.” 19 C.F.R. § 4.80a(a)(3). Section 4.80a(a)(4), CBP Regulations (19 C.F.R. § 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). ISSUE 1: Proposed Itinerary 1: Round Trip Fernandina Beach In the first proposed itinerary, the passengers will embark the vessel in Fernandina Beach, Florida, a U.S. point, calling upon several coastwise ports and one nearby foreign port (Freeport, Bahamas), and disembark the vessel in Fernandina Beach, Florida. Freeport, Bahamas is a nearby foreign port, as defined in 19 C.F.R. § 4.80a(a)(2). Based on the facts as you present them, passengers on a voyage to one or more coastwise ports and a nearby foreign port will disembark at the same coastwise port as the port of embarkation. Therefore, Section 4.80a(b)(2) is not applicable to this itinerary. Further, temporarily going ashore does not constitute disembarkation. See 19 C.F.R. § 4.80a(a)(4), supra; See also HQ 072316 (Sept. 16, 2009) (holding that “[t]emporarily going ashore at one or more intermediate coastwise ports does not constitute disembarkation”; HQ 116164 (Apr. 8, 2004) (holding that “passengers may temporarily leave the vessel at intermediate coastwise points and subsequently rejoin the vessel to resume the cruise”; HQ 115106 (Sept. 27, 2000) (holding that “since the passengers on the proposed cruise itinerary would embark at a coastwise point…on a voyage to several coastwise points and a nearby foreign port…, and return to their original point of embarkation…to disembark, the cruise itinerary would be in accord with § 4.80a(b)(2) notwithstanding that passengers may temporarily leave the vessel at another coastwise point…and rejoin the vessel”). There is no proscription in 46 U.S.C. § 55103 or the relevant regulations which would prohibit the passengers from temporarily leaving the vessel at any coastwise point in the itinerary and rejoining the vessel after a brief excursion prior to the resumption of the cruise. Consequently, this itinerary does not constitute a violation of 46 U.S.C. § 55103. This conclusion is consistent with prior CBP rulings. See HQ 303748 (May 2, 2019) (holding that “[t]he 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”). ISSUE 2: Proposed Itinerary 2: Bahamas to the United States The second proposed itinerary involves the passengers embarking the vessel at Freeport, Bahamas, calling upon several coastwise ports, and disembarking in Jacksonville, Florida. The coastwise passenger statute would be inapplicable since, under the facts presented, no passenger will embark at one coastwise point and disembark at a different coastwise point. Consequently, such an itinerary would not be in violation of 46 U.S.C. § 55103 insofar as the transportation does not involve embarkation at a coastwise port. ISSUE 3: Proposed Itinerary 3: United States to the Bahamas The third proposed itinerary involves the passengers embarking the vessel at Jacksonville, Florida, calling upon several coastwise ports, and disembarking in Freeport, Bahamas. For reasons stated above in the discussion of Proposed Itinerary 2, Proposed Itinerary 3 does not violate 46 U.S.C. § 55103. Accordingly, since the passengers on the proposed cruise itineraries would not embark and disembark at different coastwise points, the cruise itinerary would be in accord with § 4.80a(b)(2) notwithstanding the fact that passengers may temporarily leave the vessel at intermediate coastwise points and subsequently rejoin the vessel to resume the cruise. HOLDING The transportation of passengers by the M/V VICTORY I, as described in the three proposed cruise itineraries, would not constitute a violation of 46 U.S.C. § 55103. Sincerely, Lisa L. Burley Chief/Supervisory Attorney-Advisor Cargo Security, Carriers and Restricted Merchandise Branch Office of Trade, Regulations and Rulings