HQ 111600: Request for waiver of 19 U.S.C. 289

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 111600

                          April 8, 1991


VES-2-CO:R:IT:C  111600 KVS

CATEGORY:  Carriers

Mr. William E. Vajda
Daniel F. Young, Inc.
17 Battery Place North
New York, NY  10004

RE:  Request for waiver of 19 U.S.C. 289

Dear Mr. Vajda:

     This is in response to your letter dated April 8, 1991,
which requests a waiver of the applicable passenger coastwise
laws contained in 46 U.S.C. 289.

FACTS:

     Your letter states that a passenger is hospitalized aboard
the Queen Elizabeth 2, which is scheduled to arrive in New York
tomorrow.  This passenger embarked in Fort Lauderdale and is
scheduled to disembark at this same port.  Because of her
illness, the passenger wishes a family member to embark in New
York and accompany her to Fort Lauderdale to assist her in
packing, grooming etc.  Your letter indicates that the family
member would not be paying Cunard Line any consideration for
transportation between New York and Fort Lauderdale.

     Your letter acknowledges that the proposed transportation is
a contravention of the coastwise laws, but states that the
passenger, through Cunard Line, is requesting a "compassionate
waiver."

ISSUE:

     Whether the prohibition against the transportation of
passengers between U.S. coastwise points by a foreign vessel,
contained in 46 U.S.C. 289 can be waived due to exigent personal
circumstances, i.e., passenger illness.

LAW AND ANALYSIS:

          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
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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.

     Points in the United States embraced within the coastwise
laws include points in the territorial sea (defined as the belt,
three nautical miles wide, seaward of the territorial sea
baseline), and points located in internal waters (those waters
landward of the territorial sea baseline, in cases where the
baseline and the coastline differ.)

     Under the provisions of 46 U.S.C. App. 289, no foreign
vessel shall transport passengers between ports or places in the
United States, either directly or by way of a foreign port.  The
penalty for violating this section of the law is $200 for each
passenger so transported and landed.

     A "passenger," for the purposes of the coastwise laws, 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 navigation laws (including the coastwise laws) can only
be waived under the authority provided by the Act of December 27,
1950 (64 Stat. 1120; note preceding 46 U.S.C. App. 1).  This
statute provided that "[t]he head of each department or agency
responsible for the administration of the navigation and vessel
inspection laws is directed to waive compliance with such laws
upon request of the Secretary of Defense [and] [t]he head of such
department or agency is authorised to waive compliance with such
laws ... either upon his own initiative or upon the written
recommendation of the head of any Government agency whenever he
deems that such action is in the interest of national defense."

     Customs has no authority to grant waivers of the coastwise
laws other than on grounds permitted by the statute.  In the
absence of a recognizable security interest, we are unable to
grant a waiver of the coastwise laws in this instance.  This
result is in line with Customs prior decisions on this issue.











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HOLDING:

     The prohibition against the transportation of passengers
between U.S. coastwise points by a foreign vessel cannot be
waived in the absence of a demonstrated interest of national
defense.

                                Sincerely,




                                B. James Fritz
                                Chief
                                Carrier Rulings Branch