HQ 112447: 46 U.S.C. App. 289; Coastwise Trade; Passengers; Foreign-Flag Vessel; MS KAZAKHSTAN

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 112447

                       September 16, 1992

VES-3-06-CO:R:IT:C 112447 MLR

CATEGORY:  Carriers

Joern D. Insel
Managing Director
Delphin Seereisen GmbH
Blumenstrasse 20
6050 Offenbach a/m
Germany

RE:  46 U.S.C. App. 289; Coastwise Trade; Passengers; 
     Foreign-Flag Vessel; MS KAZAKHSTAN

Dear Mr. Insel:

     This is in response to your facsimile dated September 9,
1992, requesting confirmation that your cruise itinerary is in
compliance with 46 U.S.C. App. 289.  

FACTS:

     Delphin Seereisen GmbH, plans to conduct a cruise aboard the
MS KAZAKHSTAN, a Ukrainian-flag vessel.  In Customs Ruling
112233, we determined that Section 2 of the cruise (San
Francisco, California to New Orleans, Louisiana) constitutes a
violation of 46 U.S.C. App. 289.  Section 2 has now been altered
to include a call at Cartagena, Colombia:  

                            SECTION 2

PORT                     ARRIVAL        DEPARTURE   REMARKS
Flight to San Francisco, Mar. 19        Mar. 20     Embark
California                              24:00       Passengers C

Los Angeles, California  Mar. 22        Mar. 22     Passengers B 
                         08:00          24:00       re-board

San Lucas, Mexico        Mar. 25        Mar. 25
                         07:00          13:00

Acapulco, Mexico         Mar. 27        Mar. 27
                         08:00          19:00

Puerto Queztal,          Mar. 29        Mar. 29
Guatemala                08:00          20:00

Puerto Caldera,          Mar. 31        Mar. 31
Costa Rica               08:00          20:00

Panama Canal Transit     Apr. 2

Cartagena, Colombia      Apr. 3         Apr. 3
                         08:00          11:00

Cozumel, Mexico          Apr. 5         Apr. 5
                         15:00          18:30

New Orleans, Louisiana   Apr. 7         Apr. 7      Disembark
                         09:00                      Passengers
                                                    B & C
Return Flight to         Apr. 8
Frankfurt, Germany

ISSUE:

     Whether the transportation of passengers aboard a non-
coastwise-qualified vessel on the itinerary described above
constitutes a violation of 46 U.S.C. App. 289.

LAW AND ANALYSIS:

     Title 46, United States Code Appendix, section 289 
(46 U.S.C. app. 289, the passenger coastwise law), prohibits the
transportation of passengers between points embraced within the
coastwise laws of the United States, either directly or by way of
a foreign port, in a non-coastwise-qualified vessel (i.e., any
vessel not built in and documented under the laws of the United
States and owned by persons who are citizens of the United
States).  For purposes of section 289, "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."  19 CFR 4.50(b).

     The applicable Customs Regulations promulgated pursuant to
46 U.S.C. App. 289 are set forth in title 19, Code of Federal
Regulations, section 4.80a (19 CFR 4.80a).  Section 4.80a(b)(2),
Customs Regulations, provides that a coastwise violation occurs
if a passenger is on a voyage to one or more coastwise points 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.  Section 4.80a(b)(3), Customs Regulations,
provides that no coastwise violation occurs if a 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 provided the passenger has proceeded with the
vessel to a distant foreign port.  

     A distant foreign port is defined as any foreign port that
is not a nearby port.  19 CFR 4.80a(a)(3).  A nearby foreign port
is defined as:

          any foreign 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).  A port in the U.S. Virgin Islands shall be
          treated as a nearby foreign port.  19 CFR 4.80a(2).
  
     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.

     Therefore, the transportation of Passengers C from San
Francisco to New Orleans (via Cartagena, Colombia), would not
constitute a violation of 46 U.S.C. App. 289 because the
passengers will have made a voyage between coastwise points which
includes a call at a "distant foreign port".

HOLDING:

     The transportation of passengers aboard a non-coastwise-
qualified vessel who embark at San Francisco, travel with the
vessel to Cartagena, Colombia, and disembark at New Orleans, is
in compliance with 46 U.S.C. App. 289.

     We apologize for the inconvenience this change in itinerary
has caused you; however, we are bound by statute and may only set
aside the prohibition of 46 U.S.C. App. 289 in the interest of
national defense.  If you are planning any future cruises, please
do not hesitate to contact us again.

                                   Sincerely,




                                   B. James Fritz
                                   Chief