us-cbp-cross-rulings-hq-112233•HQ 112233: 46 U.S.C. app. 289; Coastwise Trade; Passengers; Foreign- Flag Vessel; Go Ashore Temporarily; Embark; Disembark; MS KAZAKHSTAN
HQ 112233: 46 U.S.C. app. 289; Coastwise Trade; Passengers; Foreign- Flag Vessel; Go Ashore Temporarily; Embark; Disembark; MS KAZAKHSTAN
us-cbp-cross-rulings-hq-112233HQ 112233: 46 U.S.C. app. 289; Coastwise Trade; Passengers; Foreign- Flag Vessel; Go Ashore Temporarily; Embark; Disembark; MS KAZAKHSTANGuidance
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 112233
June 30, 1992
VES-3-06-CO:R:IT:C 112233 MLR
CATEGORY: Carriers
Ruediger Steinbacher
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; Go Ashore Temporarily; Embark; Disembark;
MS KAZAKHSTAN
Dear Mr. Steinbacher:
This is in response to your facsimile dated June 15, 1992,
requesting a ruling as to whether a proposed cruise itinerary is
in compliance with 46 U.S.C. app. 289. Our ruling is set forth
below.
FACTS:
The MS KAZAKHSTAN is a Ukrainian-flag vessel. The proposed
voyage will be operated in three different sections and
passengers will be embarking and disembarking at different ports
(we categorize the passengers in groups as "Passengers A - E").
The proposed cruise itinerary is as follows:
SECTION 1
Cruise Dates: February 22 - March 20, 1993
Auckland, New Zealand to San Francisco, California
PORT ARRIVAL DEPARTURE REMARKS
Flight from Frankfurt, Embark
Germany, to Feb. 22 Feb. 24 Passengers
Auckland, New Zealand 20:00 A & B
Noumea, New Caledonia Feb. 27 Feb. 28
08:00 11:00
Vila, Vanuatu Mar. 1 Mar. 1
09:00 19:00
Suva, Fiji Mar. 3 Mar. 3
08:00 17:00
Apia, W. Samoa Mar. 4 Mar. 4
08:00 17:00
Kiritmati (Christmas) Mar. 8 Mar. 8
08:00 13:00
Kahului (Maui), Hawaii Mar. 11 Mar. 11
13:00 21:00
Hilo (Hawaii), Hawaii Mar. 12 Mar. 12
08:00 22:00
San Francisco, Mar. 18 Disembark
California 08:00 Passengers A;
Passengers B
temporarily
leave vessel
Passengers A will take a return flight to Frankfurt,
Germany. Passengers B will leave the vessel at San Francisco,
take a tour to Las Vegas, Nevada, and re-board the vessel at Los
Angeles, on March 22, 1993. We assume that Passengers B will
continue on to New Orleans, or to Bremerhaven, Germany.
SECTION 2
Cruise Dates: March 20 - April 4, 1993
San Francisco, California to New Orleans, Louisiana
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
George Town, Apr. 4 Apr. 4
Grand Cayman 08:00 ?
Cozumel, Mexico Apr. 5 Apr. 5
13:00 18:00
New Orleans, Louisiana Apr. 7 Apr. 7 Disembark
09:00 Passengers
B & C
Return Flight to Apr. 8
Frankfurt, Germany
SECTION 3
Cruise Dates: April 9 - May 2, 1993
New Orleans, Louisiana to Bremerhaven, Germany
PORT ARRIVAL DEPARTURE REMARKS
Flight to New Orleans, Apr. 8 Apr. 9 Embark
Louisiana 20:00 Passengers
D & E
Nassau, Bahamas Apr. 12 Apr. 12
08:00 24:00
St. George, Bermuda Apr. 15 Apr. 15
08:00 18:00
Wilmington, Apr. 18 Apr. 18 Passengers E
Delaware 08:00 15:00 temporarily
leave vessel
Passengers E will leave the vessel at Wilmington, Delaware,
on April 18, 1993, and take a tour to Washington, D.C., and re-
board at New York, New York, on April 19, 1993.
New York, New York Apr. 19 Apr. 20 Passengers E
08:00 24:00 re-board
Faial, Azores Apr. 26 Apr. 26
08:00 20:00
Cherbourg, France Apr. 30 Apr. 30
07:00 13:00
Amsterdam, May 1 May 1
The Netherlands 08:00 18:00
Bremerhaven, Germany May 2 Disembark
08:00 Passengers
B, D, & E
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 883 (the
merchandise coastwise law often called the "Jones Act") prohibits
the transportation of merchandise between United States coastwise
points, either directly or via a foreign port, or for any part of
the transportation, 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.
In interpreting section 883, Customs has ruled that a point
in United States territorial waters is a point in the United
States embraced within the coastwise laws. The territorial
waters of the United States consist of the territorial sea,
defined as the belt, 3 nautical miles wide, seaward of the
territorial sea baseline, and to points located in internal
waters, landward of the territorial sea baseline, in cases where
the baseline and the coastline differ.
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 {19 CFR 4.80a(b)(2)}, 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 {19 CFR 4.80a(b)(3)}, 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.
Section 4.80a(a)(3) of the Customs Regulations defines a
distant foreign port as any foreign port that is not a nearby
port. 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, 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.
In regard to the proposed cruise itinerary:
Passengers A: The transportation of Passengers A who
embark at Auckland, New Zealand, and disembark at San Francisco,
California, would not constitute a violation of the passenger
coastwise law because the passengers do not embark at a
coastwise port.
Passengers B: The transportation of Passengers B who
embark at Auckland, New Zealand, leave the vessel temporarily at
San Francisco, California, to take a tour to Las Vegas, Nevada,
and re-board at Los Angeles, California, to continue on to New
Orleans, Louisiana, or Bremerhaven, Germany, would not constitute
a violation of the passenger coastwise law because the passengers
do not embark at a coastwise port. Further, when the passengers
temporarily leave the vessel at San Francisco, and re-board at
Los Angeles, there would not be a violation of section 289
provided that they have booked passage for the entire voyage and
cruise to the conclusion of the specific voyage. When the
passengers temporarily leave the vessel, they must also retain
their accommodation. The vessel operator must not use those
accommodations for any other persons while they are away from the
vessel, and the passengers must have the right to leave any part
of their possessions in their berth while they are temporarily
away from the vessel. The cost of the complete voyage of their
passage must include the time that they are away from the
vessel.
Passengers C: The transportation of Passengers C who embark
at San Francisco, California, and disembark at New Orleans,
Louisiana (via Los Angeles, California; San Lucas, Mexico;
Acapulco, Mexico; Puerto Queztal, Guatemala; Puerto Caldera,
Costa Rica; Panama Canal; George Town, Grand Cayman; and Cozumel,
Mexico) would constitute a violation of the passenger coastwise
law because the passengers have made a voyage between coastwise
points which included only a call at "nearby foreign ports" in
violation of 19 CFR 4.80a(b)(2).
Passengers D: The transportation of Passengers D who embark
at New Orleans, Louisiana, and disembark at Bremerhaven, Germany
would not constitute a violation of the passenger coastwise law
because the passengers have not disembarked at a coastwise port.
Passengers E: The transportation of Passengers E who embark
at New Orleans, Louisiana, leave the vessel temporarily at
Wilmington, Delaware, to take a tour to Washington, D.C., and re-
board at New York, New York, to continue on to Bremerhaven,
Germany, would not constitute a violation of the passenger
coastwise law because the passengers have not disembarked at a
coastwise port. (See discussion above concerning Passengers B,
for conditions).
HOLDING:
The transportation of passengers aboard a non-coastwise-
qualified vessel on the itinerary described above does not
constitute a violation of 46 U.S.C. app. 289 with the exception
of the transportation of Passengers C.
If you have any further questions, please contact Monika
Rice at (202) 566-5706.
Sincerely,
B. James Fritz
Chief
Carrier Rulings Branch
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