HQ 112386: Addendum to Headquarters Ruling Letter 112208

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 112386

                          July 22, 1992

VES-3-02 CO:R:IT:C 112386 GFM

CATEGORY:  Carriers

R. Taylor
Operations Department
Rice, Unruh, Reynolds Co.
115 Chestnut Street
Philadelphia, PA  19106

RE:  Addendum to Headquarters Ruling Letter 112208

Dear Mr. Taylor:

     This is in reference to your letter dated June 23, 1992,
requesting comment on an issue pursuant to the above referenced
ruling.

     In your letter, you inquire as to whether it would be
possible for passengers joining the MAXIM GORKIY in Port
Everglades, Florida, to spend the night on board the vessel at
berth, participate the following day in an overland excursion to
Tampa, Florida, and then rejoin the vessel in Tampa where they
will depart foreign.  

     Generally, the coastwise laws (e.g., 46 U.S.C. App. 289 and
883, and 46 U.S.C. 12106 and 12110) prohibit the transportation  
of merchandise or passengers between points in the United States
embraced within the coastwise laws in any vessel other than a
vessel built in and documented under the laws of the United
States, and owned by persons who are citizens of the United
States.

     The passenger coastwise law, 46 U.S.C. App. 289, provides
that:

          No foreign vessel shall transport passengers
          between ports or places in the United States
          either directly or by way of a foreign port,
          under penalty of $200 for each passenger so
          transported and landed.

     For purposes of the coastwise laws, a vessel "passenger" is
defined as "... any person carried on a vessel who is not
connected with the operation of such vessel, her navigation,
ownership, or business."  (Section 4.50(b), Customs Regulations.) 


     In its administration of 46 U.S.C. App. 289, the Customs
Service has ruled that the carriage of passengers entirely within
territorial waters, even though the passengers disembark at their
point of embarkation and the vessel touches no other coastwise
point, is considered coastwise trade subject to coastwise laws. 
However, the transportation of passengers to the high seas (i.e.,
beyond U.S. territorial waters) and back to the point of
embarkation, assuming the passengers do not go ashore, even
temporarily, at another United States point, often called a
"voyage to nowhere", is not considered coastwise trade.  

     Customs has ruled that if passengers embark at a coastwise
point and either disembark (see the definitions of "embark" and
"disembark" set forth below 19 CFR 4.80a(a)(4)) or go ashore
temporarily to take sight-seeing excursions at an intermediate
U.S. port, there would be no violation of section 289 if they are
allowed to remain on shore at the intermediate U.S. port for an
extended period of time (e.g., several days), but are on board
when the vessel leaves the United States port for a distant
foreign port.  Transportation from the distant foreign port to
the port of original embarkation would not be a coastwise
transportation of passengers for purposes of section 289.  The
relevancy of whether an intermediate foreign port is a "nearby
foreign port" (as defined in 19 CFR 4.80a(a)(2)) or a "distant
foreign port" (as defined in 19 CFR 4.80a(a)(3)) is crucial in
determining whether or not a violation of section 289 has
occurred.  

     The focus of section 289 is on the route of the vessel.
Section 4.80a(b)(2) of the Customs Regulations (19 CFR
4.80a(b)(2) provides that, "if the passenger is on a voyage to
one or more 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 point other than the port of
embarkation, there is a violation of the coastwise law" (46
U.S.C. App. 289).  We have ruled that if a 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 the vessel at a nearby foreign port or if the
passengers embark and disembark at the same coastwise port, there
is no violation of section 289.




     The threshold question regarding your tour is whether a
passenger "disembarks" from the vessel as that term is defined in
the Customs Regulations, when the passenger leaves the vessel
temporarily at one port of call, re-boards at the next port of
call, and continues to the conclusion of the specific voyage.

     Section 4.80a(a)(4) defines embark and disembark as follows:

          "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 re-boards 
          the vessel and departs with it on sailing from 
          the port.

     In the background portion of the Federal Register notice (50
FR 126 (1985)) which published the final rule that amended
section 4.80a (a)(4) to include the above stated language, it is
stated that:

          The terms "embark" and disembark" are trade
          words of art which normally mean going on
          board a vessel for the duration of a specific
          voyage and leaving a vessel at the conclusion
          of a specific voyage.  In this normal context
          the words do not contemplate temporary shore
          leave for any specific number of hours during
          a voyage.  It has been determined that the
          use of the terms in the amendment will follow
          the intent of Congress and clarify the scope
          of the regulations.  That the statutory
          language "so transported and landed" means
          the final and permanent disembarking is
          further shown by the following Attorney
          General Opinions:... 

     Without citing the Attorney General Opinions set forth in
the background, we conclude that a passenger would not have
"disembarked" from the vessel if the passenger does not "finally
and permanently" leave the vessel until the conclusion of the
specific voyage.  

     Regarding the proposal at hand, passengers joining the MAXIM
GORKIY in Port Everglades, Florida, who wish to spend the night
on board the vessel at berth, and then leave the next day on an 



overland excursion to Tampa, where they would rejoin the vessel
and continue onboard through the remainder of the schedule will 
not violate the coastwise laws. 

                                     Sincerely,




                                     B. James Fritz
                                     Chief 
                                     Carrier Rulings Branch