HQ 110976: Applicability of the Coastwise Passenger Statute to Alternative Passenger Cruise Itineraries

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 110976
                          June 26, 1990

VES-3-02 CO:R:P:C 110976 LLB

CATEGORY:  Carriers

Mr. Paul H. Wells
Fraser Maritime Services, Inc.
330 Biscayne Blvd.
Miami, Florida  33132

RE:  Applicability of the Coastwise Passenger Statute to
     Alternative Passenger Cruise Itineraries


Dear Sir:

     Reference is made to your letter of April 11, 1990, in which
you request a ruling on the applicability of the coastwise
passenger statute to alternative proposed cruise itineraries.

FACTS:

     We understand the proposed itineraries to be:

     1.   A foreign-flag vessel would take passengers aboard in
Tampa, Florida.  The passengers would leave the vessel in
Progresso, Mexico, and return to any of various U.S. cities by
commercial airline.

     2.   Two foreign-flag vessels would depart from Tampa,
several days apart, and continue cruising between that port and
Progresso, Mexico.  Persons discharged in Progresso would stay
for varying periods and reboard either of the vessels to return
either to Tampa or other U.S. ports for disembarkation.

ISSUE:

     Whether the coastwise passenger transportation statute would
prohibit either of the proposed cruise itineraries.

LAW AND ANALYSIS:

     Generally, the coastwise laws 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, documented under the laws of, and owned by
citizens of the United States.  The passenger coastwise law, 46
U.S.C. App. 289, provides that:
               No foreign vessel shall transport passengers
               between port or places in the United States,
               either directly or by way of a foreign port,
               under a penalty of $200 for each passenger so
               transported and landed.

     Pursuant to 46 U.S.C. 12106 and 12110 and their predecessors
(46 U.S.C. 65i and 65m and, before them, 46 U.S.C. 11) and
consistent with 46 U.S.C. App. 883, the coastwise merchandise
law, the Customs Service has consistently held that the
prohibition in 46 U.S.C. App. 289 applies to all non-coastwise-
qualified vessels.

     Customs has promulgated regulations to administer the
passenger transportation statute in section 4.80a, Customs
Regulations (19 CFR 4.80a).  The regulations provide guidelines
for determining whether the movement of passengers between two
coastwise points, with at least one intervening foreign point, is
considered coastwise trade.  To facilitate such determinations a
distinction has been drawn between nearby foreign ports and
distant foreign ports.  By visiting at least one distant foreign
point, a violation of the coastwise laws may be avoided on
cruises moving between U.S. ports.  For ease of application, the
distinction has been drawn geographically with all Canadian,
Mexican, Central American, Caribbean Sea, and Gulf of Mexico
points (with the exception of the Islands of Aruba, Bonaire, and
Curacao), being designated as nearby foreign ports, and all
others being considered distant foreign ports.

     As stringently as the law is drawn and administered, it is
the case, as reiterated in the case of Autolog Corporation et al.
v. Regan, 731 F.2d 25 (1984), that section 289 aims at tracking
the route of the vessel and not the passengers.  In the cited
case, passengers and their automobiles were taken from New York
to the Bahamas on one foreign-flag vessel, and there transferred
to other foreign-flag vessels for transportation to ports in
Florida.  This was found not to be in violation of section 289
since more than one vessel was involved in the transportation of
any single passenger.  The same would not be the case under the
coastwise merchandise statute (section 883), but that statute was
not violated in the cited case since the automobiles transported
were considered baggage transported free of charge.

     In terms of the itineraries under consideration, the
passengers may be returned by air carrier without violating
section 289.  In the case of passengers returning by vessel,
persons may be returned to their original port of embarkation in
the U.S. by either of the vessels involved.  Any person
returning to the U.S. at a port other than the original port of
embarkation must be returned on a different vessel than the one
originally transporting that person from the United States.

HOLDING:

     After thorough consideration of the facts and analysis of
the law, we find that under the itineraries proposed in this
case, cruise passengers taken aboard at coastwise points may
eventually end their travel as specified in the law and analysis
section of this ruling letter.

                                Sincerely,




                                B. James Fritz
                                Chief
                                Carrier Rulings Branch