HQ 112353: 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 112353

                          July 22, 1992

VES-3-02 CO:R:IT:C 112353 GFM

CATEGORY:  Carriers

Dr. Sharon W. Cooper, M.D.
Department of the Army
Womack Army Medical Center
Fort Bragg, North Carolina 26307-5000

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

Dear Dr. Cooper:

     This is in reference to your letter of July 9, 1992,
concerning your plans to travel on board a non-coastwise-
qualified vessel.

     You state that you plan to board a foreign flag vessel, the
VIKING SERENADE, during its second docking in San Diego,
California, on August 4, 1992, for a trip to an undisclosed
destination.  As schedule changes have forced you to board this
vessel from a coastwise point different from that of the vessel's
original departure, you inquire as to whether such activity must
be sanctioned by our office.

     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.


     Turning to the case at hand, as the focus of section 289 is
on the route of the vessel, the legality of your proposed voyage
will depend not upon your point of coastwise embarkation, but
upon your point of coastwise disembarkation.  There is no
requirement of written permission from our office for such a
voyage, and the point from which a passenger boards a vessel for
such coastwise purposes is inconsequential.

     With respect to passengers traveling aboard non-coastwise-
qualified vessels, however, it is well established that if a
passenger embarks onboard a vessel at one coastwise point and
disembarks at another, without traveling to a foreign
destination, a violation of section 289 will occur.

     In your letter, you state that you are to traveling to speak
at a medical conference, but you neglected to state whether the
meeting will be held in the U.S. or foreign.  If your plans
involve embarkation at San Diego, California, and disembarkation
(i.e. end your journey) at another point within the U.S.
coastwise waters, a clear violation of section 289 would result.

     Should you require further assistance, please do not
hesitate to contact our office.

                                        Sincerely,




                                        B. James Fritz
                                        Chief
                                        Carrier Rulings Branch