Interesting PVSA decision

[Hlitner]

30 minutes ago, Flatbush Flyer said:

Here is the Sept. 2019 revised PVSA.

https://www.cbp.gov/sites/default/files/assets/documents/2019-Sep/PVSA-ICP.pdf

I guess a lifetime working in government (and sometimes being tasked to write regulations) makes me cringe when I see any government document.  Just like the regulations which make it illegal for folks to cross our borders (without going through a proper border check point), these rules are interesting.  Regulations and statutes are only effective when enforced and "selective enforcement is an integral part of our government system."

 

I did not notice a regulatory definition of (embark or embarkation) which would be key to the discussion of this thread.  If CBP determined that the passengers embarked in Sydney, there should be no problem.  But, if the CBP folks decide to interpret the term embarkation to mean in Hawaii (because a passenger has a separate booking # showing embarkation at that port) I could see where it would be interpreted as a PVSA violation since they would not view Vancouver as a "distant foreign port."  But who knows.

 

Getting back to the OPs issue, the bottom line is the cruise line makes their determination, and the passenger must live with it!  They can certainly try to appeal the issue (to the cruise line) but it is ultimately their ship and their interpretation that will carry the day.

 

Hank

[njhorseman]

2 hours ago, Hlitner said:

I guess the cruise line, with all their lawyers, does not agree with your interpretation of the statute.

 

Hank

One of the businesses I owned and operated was a travel agency agency and I will put my knowledge of the PVSA up against a cruise line employee's, including many of their lawyers, any time. And needless to say based on your reply there is a 100% chance that I know the law better than you.

I suggest you do a little background research on the law and its history. When you do perhaps you'll understand why this itinerary is so clearly legal. Let me give you a hint...the PVSA dates back to 1886 when cruising as we know it didn't exist. Ships were used as a form of transportation for people going from Point A to Point B...for example New York to Boston. One of the principle purposes of the law is to regulate travel from one port in the USA to a different port in the USA. Is this passenger being transported from one port in the USA to another port in the USA? Uh...no. The passenger is being transported from Australia to the USA.

 

In any event I doubt Disney's lawyers have even been asked the question yet, given the OP's advice to his friend to push the question up the corporate ladder to a compliance officer. Cruise lines frequently block complicated itineraries from being booked through their computer systems in order to prevent unintentional violations of the PVSA but will override that block when approval of the itinerary is granted by their compliance officer.

 

I've seen cruise lines' crackerjack lawyers screw up interpretations of this law repeatedly, both disallowing itineraries that are legal and allowing itineraries that were in violation. A year or two ago one of the major cruise lines, perhaps Royal Caribbean, allowed passengers to book a B2B itinerary that was in clear violation of the PVSA and realized their error too late. They informed affected passengers when they were checking in for the cruise that they would have to disembark at what was intended to be only a port of call, stay overnight in that port, and be transported the next day to the next port to resume the cruise. That overnight stay converted the cruise from an illegal B2B itinerary to two legal cruises.

[njhorseman]

1 hour ago, Flatbush Flyer said:

Here is the Sept. 2019 revised PVSA.

https://www.cbp.gov/sites/default/files/assets/documents/2019-Sep/PVSA-ICP.pdf

Yes, and that document cites the applicable laws and regulations.

 

Digging into those cited references you'll find in the regulations at 19 CFR 4.80a that the PVSA is applicable to passengers embarking at a coastwise port...which is defined as "a port in the U.S., its territories, or possession". 

 

Further, the words "embark" and "disembark" are defined as : " (4) 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 reboards the vessel and departs with it on sailing from the port."

 

From the above it is 100% clear that a passenger who embarks in a foreign port such as the passenger in question who is embarking in Australia clearly is not subject to the PVSA rules. The PVSA is only applicable to passengers embarking at a coastwise port. 

[1025cruise]

Here's the issue. Someone programmed DCL's computer to flag any cruisers that booked Honolulu to San Diego so they can inform people that they can't do it. So the OP's friend got flagged. The computer wasn't told that if anyone was also sailing Sydney to Honolulu that it would be OK. Once they speak to the proper person, it shouldn't be an issue. If I were to guess, the OP's friend is probably in a small minority doing a TP that long. I would guess that there would be more interest in Honolulu to San Diego versus people starting all the way in Sydney.

[GeezerCouple]

14 minutes ago, njhorseman said:

Yes, and that document cites the applicable laws and regulations.

 

Digging into those cited references you'll find in the regulations at 19 CFR 4.80a that the PVSA is applicable to passengers embarking at a coastwise port...which is defined as "a port in the U.S., its territories, or possession". 

 

Further, the words "embark" and "disembark" are defined as : " (4) 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 reboards the vessel and departs with it on sailing from the port."

 

From the above it is 100% clear that a passenger who embarks in a foreign port such as the passenger in question who is embarking in Australia clearly is not subject to the PVSA rules. The PVSA is only applicable to passengers embarking at a coastwise port. 

 

I'm not sure all of the above is correct.

 

For example, your statement above that;
"The terms embark and disembark are not applicable to a passenger going ashore temporarily at a coastwise port who reboards the vessel and departs with it on sailing from the port."

 

... seems to violate the following verbatim statement from the 2019 "Passenger Vessel Service Act", using the link in an above post.

 

On Page 9-10:

 

"

Geographic Locations Where the PVSA Applies

 

Points in the United States, including its island territories and possessions

A non-coastwise-qualified vessel may not transport passengers directly between U.S. coastwise ports or indirectly via several U.S. ports.3

EXAMPLE: A coastwise transportation violation occurs when a passenger embarks a non-coastwise-qualified vessel in San Francisco and is transported to Seattle, where the passenger disembarks.

   

3 19 C.F.R. § 4.80a(b)(1).
U.S. Customs and Border Protection

9

The Passenger Vessel Services Act September 2019

EXAMPLE: A PVSA violation occurs when passengers embark a non-coastwise- qualified vessel in Los Angeles and are transported to several Hawaiian Islands where the passengers go ashore temporarily then return to the vessel and disembark in Los Angeles."

 

If I've misunderstood the above section, please help us understand.

Some of the descriptions/definitions of the PVSA are, er, not entirely clear!

 

And as mentioned previously, there's always the issue of whether the cruise line allows a particular itinerary.  They can't (shouldn't!) allow a violation of PVSA.  But they *can* refuse to transport passengers on what actually IS a legal itinerary, even if the cruise line says/claims it's *not* in compliance with PVSA.  However, then it's not really a PVSA violation; it's a violation of whatever "rules the cruiseline is enforcing".  😡

 

GC

[njhorseman]

19 minutes ago, GeezerCouple said:

 

I'm not sure all of the above is correct.

 

For example, your statement above that;
"The terms embark and disembark are not applicable to a passenger going ashore temporarily at a coastwise port who reboards the vessel and departs with it on sailing from the port."

 

... seems to violate the following verbatim statement from the 2019 "Passenger Vessel Service Act", using the link in an above post.

 

On Page 9-10:

 

"

Geographic Locations Where the PVSA Applies

 

Points in the United States, including its island territories and possessions

A non-coastwise-qualified vessel may not transport passengers directly between U.S. coastwise ports or indirectly via several U.S. ports.3

EXAMPLE: A coastwise transportation violation occurs when a passenger embarks a non-coastwise-qualified vessel in San Francisco and is transported to Seattle, where the passenger disembarks.

   

3 19 C.F.R. § 4.80a(b)(1).
U.S. Customs and Border Protection

9

The Passenger Vessel Services Act September 2019

EXAMPLE: A PVSA violation occurs when passengers embark a non-coastwise- qualified vessel in Los Angeles and are transported to several Hawaiian Islands where the passengers go ashore temporarily then return to the vessel and disembark in Los Angeles."

 

If I've misunderstood the above section, please help us understand.

Some of the descriptions/definitions of the PVSA are, er, not entirely clear!

 

And as mentioned previously, there's always the issue of whether the cruise line allows a particular itinerary.  They can't (shouldn't!) allow a violation of PVSA.  But they *can* refuse to transport passengers on what actually IS a legal itinerary, even if the cruise line says/claims it's *not* in compliance with PVSA.  However, then it's not really a PVSA violation; it's a violation of whatever "rules the cruiseline is enforcing".  😡

 

GC

That is not "my statement" you've put in hold italics at the start of your post,  it's a direct quotation from the published regulation. 

The two examples you've later quoted are PVSA violations because neither cruise has made a port call at a foreign port. In the first example a distant foreign port call would be required because the cruise starts in San Francisco and ends in Seattle. 

The second example would require a call in any foreign port because it's closed loop from Los Angeles to Los Angeles. The cruise's only port call was in US ports in Hawaii. 

Neither of the above are relevant for the cruise being discussed in this thread.

Based on the original post this thread is not about the cruise line making an arbitrary business decision to not permit the booking...it's about the cruise line refusing the booking by mistakenly claiming it's in violation of the PVSA. 

Edited 10 hours ago by njhorseman

[chengkp75]

I will jump in here and say that I agree with everything that @njhorseman has said.  The voyage from Sydney to San Diego is fully compliant with the PVSA.  I will guarantee that this issue has not been seen by any legal professional, as the OP stated that his friend was told he could not escalate to compliance.  I don't care how new Disney is to the PVSA as far as West Coast cruises (the most often incidence of PVSA violations), they deal with the PVSA on a daily basis as operators of foreign flag cruise ships operating out of the US.

 

It was back in the 90's, if I remember right, that the term "permanently disembark" was introduced by CBP into the PVSA lexicon, as up until then, if you boarded a foreign flag cruise ship in a US port, the only US port you could go to would be that very same embarkation port.  US ports of call were not allowed, as this was deemed as "transportation between US ports".  The addition of the word "permanently" to the term disembark, allowed for the ability to have multiple US port calls in one voyage, as long as you returned to "permanently" disembark at the embarkation port.

 

The OP's friend needs to have a customer service supervisor on the line, and then request the compliance department, or if that fails, go to the resolutions department, and ask for compliance through them.

 

While it is within Disney's rights to not sell the combined cruises together, it is not correct for them to hide it under the aegis of the PVSA.

[Shmoo here]

1 hour ago, chengkp75 said:

as the OP stated that his friend was told he could not escalate to compliance. 

No, I said, "if DCL contacts you and tells you your cruises violate the PVSA, ask for the compliance department to clarify why".  When he came back and said he had been contacted by DCL telling him that, he didn't specify whether or not he was talking to a customer service/reservations person or someone who really could help him.

 

I asked specifically later if he had asked to speak to compliance, I've not received an answer to that.

 

1 hour ago, chengkp75 said:

The OP's friend needs to have a customer service supervisor on the line, and then request the compliance department, or if that fails, go to the resolutions department, and ask for compliance through them.

 

While it is within Disney's rights to not sell the combined cruises together, it is not correct for them to hide it under the aegis of the PVSA.

I will see if I can get his attention via PM and tell him this.

Edited 6 hours ago by Shmoo here

[Shmoo here]

BTW, thanks to everyone who's helped answer my question.

[Flatbush Flyer]

7 hours ago, GeezerCouple said:

 

I'm not sure all of the above is correct.

 

For example, your statement above that;
"The terms embark and disembark are not applicable to a passenger going ashore temporarily at a coastwise port who reboards the vessel and departs with it on sailing from the port."

 

... seems to violate the following verbatim statement from the 2019 "Passenger Vessel Service Act", using the link in an above post.

 

On Page 9-10:

 

"

Geographic Locations Where the PVSA Applies

 

Points in the United States, including its island territories and possessions

A non-coastwise-qualified vessel may not transport passengers directly between U.S. coastwise ports or indirectly via several U.S. ports.3

EXAMPLE: A coastwise transportation violation occurs when a passenger embarks a non-coastwise-qualified vessel in San Francisco and is transported to Seattle, where the passenger disembarks.

   

3 19 C.F.R. § 4.80a(b)(1).
U.S. Customs and Border Protection

9

The Passenger Vessel Services Act September 2019

EXAMPLE: A PVSA violation occurs when passengers embark a non-coastwise- qualified vessel in Los Angeles and are transported to several Hawaiian Islands where the passengers go ashore temporarily then return to the vessel and disembark in Los Angeles."

 

If I've misunderstood the above section, please help us understand.

Some of the descriptions/definitions of the PVSA are, er, not entirely clear!

 

And as mentioned previously, there's always the issue of whether the cruise line allows a particular itinerary.  They can't (shouldn't!) allow a violation of PVSA.  But they *can* refuse to transport passengers on what actually IS a legal itinerary, even if the cruise line says/claims it's *not* in compliance with PVSA.  However, then it's not really a PVSA violation; it's a violation of whatever "rules the cruiseline is enforcing".  😡

 

GC

Some of the confusion in this thread may be related to the different booking policies and practices of different cruise lines.

SYD to SAN can be both OK and not OK as regards the PVSA and non-coastwise ships.
 

And the difference would be focused on how the Hawaii to San Diego portion is marketed/booked by a cruise line and how that booking is interpreted by CBP. One booking number for the entire itinerary is (IMO) not a PVSA violation. But, purchasing the included HI to CA segment as a separate cruise (or as part of a custom SYD-SAN cruise representing an aggregate of several segments) with multiple booking numbers (or a modified single booking number) certainly could be interpreted as a PVSA violation by CBP. 

 

 

[Ferry_Watcher]

8 hours ago, njhorseman said:

A year or two ago one of the major cruise lines, perhaps Royal Caribbean, allowed passengers to book a B2B itinerary that was in clear violation of the PVSA and realized their error too late. They informed affected passengers when they were checking in for the cruise that they would have to disembark at what was intended to be only a port of call, stay overnight in that port, and be transported the next day to the next port to resume the cruise. That overnight stay converted the cruise from an illegal B2B itinerary to two legal cruises.

 

It was Celebrity, sailing at the end of the Alaska season from Seattle, ending in Vancouver, BC, but the next cruise leaving Vancouver, BC ended in a US port (Hawaii or maybe in California - I can't remember).  Those passengers who were booked on the B2B (ending in the US port) were told they had to disembark in Victoria, BC (which fortunately the ship was stopping at).  Passengers spent the night in Victoria, then had to get themselves to Vancouver the next day and reboard the ship.

 

Most passengers were notified about this PVSA situation before boarding in Seattle, but a handful were informed while checking in at Seattle.