HQ 112425: Nearby Foreign Port; Coastwise Trade: Passengers; Distant Foreign Port; Foreign-Flag Vessel: 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 112425

                        December 14, 1992

VES-3-02/07-CO:R:IT:C 112425 GFM

CATEGORY: Carriers

Mr. Andrew K. Horton
Port Operations Manager
Regency Cruises
8880 N.W. 20th Street
Miami FL  33172

RE:  Nearby Foreign Port; Coastwise Trade: Passengers; Distant
     Foreign Port; Foreign-Flag Vessel: 46 U.S.C. App.   289. 

Dear Mr. Horton:

     This is in response to your letter of August 12, 1992, which
requests a ruling regarding the application of the Jones Act to
the  proposed itinerary of a foreign flag vessel as set forth
below.

FACTS:

     The proposed cruise schedule is as follows:

   DAY          DATE         PORT          ARRIVE         DEPART 
      
Friday        10/09/93     San Diego                     4:00 pm
Saturday      10/10/93      At Sea       
Sunday        10/11/93      At Sea    
Monday        10/12/93   Puerto Vallarta   10:00 am      6:00 pm
Tuesday       10/13/93    Manzanillo        7:00 am      2:00 pm
Wednesday     10/14/93     Acapulco         8:00 am      5:30 pm
Thursday      10/15/93      At Sea          
Friday        10/16/93      At Sea 
Saturday      10/17/93  Caldera/San Jose    7:30 am      6:00 pm
Sunday        10/18/93      At Sea           
Monday        10/19/93   Panama Canal       7:30 am      4:00 pm
Tuesday       10/20/93      At Sea         
Wednesday     10/21/93    Montego Bay       8:00 am      7:00 pm
Thursday      10/22/93   Grand Cayman       8:00 am      1:30 pm
Friday        10/23/93      At Sea          
Saturday      10/24/93      Tampa           8:00 am
                                                                 
ISSUE:

     Whether the transportation of passengers aboard a
foreign-flag vessel pursuant to the above described schedule
would constitute a violation of 46 U.S.C. App.   289.

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.
  
     The coastwise passenger 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 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." (Section 4.50(b), Customs Regulations.)
Section 4.80a, Customs Regulations (19 C.F.R.   4.80a) is
interpretive of section 289.

     The Customs Service has promulgated regulations to
administer the passenger transportation statute in section 4.80a,
Customs Regulations (19 C.F.R.   4.80a).  The regulations provide
guidelines for determining whether the movement of passengers
between two coastwise points, with at least one intervening
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 port, a violation of the coastwise laws may
be avoided on a cruise 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.

     If a passenger on a voyage to a distant foreign port embarks
at a coastwise point and goes ashore temporarily to take sight-
seeing excursions at an intermediate U.S. port there is no
violation provided that the passenger proceeds on the voyage to
the distant foreign point. The relevancy of whether an
intermediate foreign port is a "nearby foreign port" (as defined
in 19 C.F.R.   4.80a(a)(2)) or a "distant foreign port" (as
defined in 19 C.F.R.   4.80a(a)(3)) is crucial in determining
whether or not a violation of section 289 has occurred.

     The focus of section 289 is on the route of the vessel.
Section 4.80a(b)(2) of the Customs Regulations (19 C.F.R.  
4.80a(b)(2) provides that, "if the passenger is on a voyage to
one or more coastwise ports and a nearby foreign port or ports
(but no other foreign port) and the passenger disembarks at a
coastwise point other than the port of embarkation, there is a
violation of the coastwise law" (46 U.S.C. App.   289).  We have
ruled that if a passenger is on a voyage to one or more coastwise
ports and a nearby foreign port or ports (but no other foreign
port) and the passenger disembarks the vessel at a nearby foreign
port or if the passenger embarks and disembarks at the same
coastwise port, there is no violation of section 289. (see 19
C.F.R.   4.80a(a)(1), (2), and (4) for the definitions of the
terms "coastwise port," "nearby foreign port," "embark," and
"disembark," as those terms are used in the regulation).

     With regard to the proposed itinerary under consideration,
it is clear that each of the foreign ports to be visited has been
designated as a nearby foreign port.  If such passengers are to
embark at San Diego, California, visit said nearby foreign ports,
and eventually disembark at Tampa, Florida, in accordance with
the foregoing authority, a clear violation of section 289 would
result. 

HOLDING:

     The transportation of passengers aboard a foreign-flag
vessel in accordance with the proposed schedule described above
would constitute a violation of 46 U.S.C. App.   289.

                                        Sincerely,

     

                                        Acting Chief
                                        Carrier Rulings Branch