HQ 112215: Coastwise passenger law; 46 U.S.C. App. 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 112215             

                          July 22, 1992


VES-3-02 CO:R:IT:C 112215 GFM

CATEGORY:  Carriers

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

RE:  Coastwise passenger law; 46 U.S.C. App. 289

Dear Mr. Taylor:

     This is in reference to your letter dated April 13, 1992,
concerning the proposed transport of passengers.

FACTS:

     The non-coastwise-qualified vessel, the Columbus Caravelle,
will arrive in the United States with passengers boarded in
Europe, to make a series of sightseeing calls at U.S. ports
before ultimately departing foreign.  At Boston, Massachusetts,
some passengers will disembark, while others will embark and
continue onboard to either the Bahamas or Aruba.

ISSUE:

     Whether the use of foreign-built, foreign-documented
vessels, intended to transport passengers embarking in Europe and
disembarking in the United States, the Bahamas or Aruba, or
embarking in the United States and disembarking in the Bahamas or
Aruba, and making a series of sightseeing calls at intermediate
U.S. ports, is prohibited by the coastwise trade laws.

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 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 (i.e., a coastwise-qualified vessel).

     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 $200.00 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."  (see, 19 CFR 4.50(b).

     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.  

     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
          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 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.

     The focus of section 289 is on the route of the vessel.     
Turning to the case at hand, you propose two schedules for the
transportation of passengers on non-coastwise-qualified vessels: 

1)  Passengers will embark in Europe, make a series of
sightseeing calls at intermediate U.S. ports, and will disembark
at either Boston, Massachusetts, the Bahamas, or Aruba; or 

2)  Passengers will embark at Boston, Massachusetts, make a
series of sightseeing calls at intermediate U.S. ports, and will
disembark at either the Bahamas or Aruba.  

     Under either scenario, there would be no violation of 289
provided that the vessels do not transport any passengers between
U.S. ports, with the exception of going ashore temporarily to
take sight-seeing excursions. 

HOLDING:

     The transport of passengers embarking in Europe and
disembarking in the United States, the Bahamas or Aruba, or
embarking in the United States and disembarking in the Bahamas or
Aruba, via foreign-built, foreign-documented vessels which make
sightseeing calls at intermediate U.S. ports, is not prohibited
by the coastwise laws, provided that no transportation of
passengers between U.S. ports takes place.

                                        Sincerely,




                                        B. James Fritz
                                        Chief