Customs says ‘cruises to nowhere’ were never legal

At first blush, the end of “cruises to nowhere” seemed like a
cut-and-dried issue, with the industry simply responding to a new regulation.

In a statement last week, CLIA said, “… beginning in 2016,
in compliance with U.S. laws and regulations, foreign-flagged cruise lines
operating out of U.S. ports are not to offer cruises for sale that do not
include a call in a foreign port.” 

However, a closer look at the history of cruises to nowhere
from U.S. ports suggests that they have probably long been in technical
violation of existing immigration laws. 

Individual cruise lines last week said they were canceling
their cruises to nowhere because of ship clearance “changes.”

“Due to recent changes in how ships are cleared into and out
of the United States by U.S. officials, certain short-duration cruises without
a foreign port of call are subject to itinerary changes beginning in 2016,”
Carnival said in a statement. “Unfortunately, this means that we will not be
permitted to operate cruises-to-nowhere.”

Norwegian Cruise Line’s statement said basically the same
thing, adding that three two-day cruises on the Norwegian Breakaway in early
2016 “were affected by this change and will be cancelled, with guests receiving
a refund.”

But according to U.S. Customs and Border Protection (CBP),
the federal agency that controls the entry and exit of foreign nationals to the
U.S., it is simply enforcing longstanding rules.

The majority of cruise ship crew are foreign nationals, and
many hold D-1 visas, making them eligible to, in the words of a CBP statement,
“serve as a crew member on a vessel only if the crew member ‘intends to land
[in the U.S.] temporarily and solely in the pursuit of his calling as a crewman
and to depart from the United States with the vessel.’”

CBP said it “has long explained that ‘cruises to nowhere’ do
not ‘depart’ [the U.S.] because they do not land in a foreign port or
territory. Therefore, D-1 visa holders are not eligible to serve as crew
members aboard ‘cruises to nowhere,’ and such cruises must be staffed by U.S. citizens
or lawful permanent residents authorized to work in the United States.”

As for how it happened that cruise lines have been offering
cruises to nowhere for as long as they have, it could be simply that ignorance
was bliss.

“It was never even brought up, to my recollection,” said Rod
McLeod, a former cruise executive at various times with Carnival Corp., Royal
Caribbean Cruises Ltd. and Norwegian Cruise Line. “We knew what our visa
requirements were for our crew members. That was clear, and we were very
careful with that. … It was never brought to my knowledge or attention that
this was in any way in violation or required an exemption.”

 McLeod said cruise
lines have always been very aware of the Passenger Vessel Services Act (PVSA)
of 1886, which requires that foreign-flagged ships sailing from one U.S. port
to another stop in a foreign port. For example, a roundtrip
California-to-Hawaii cruise might stop in Ensenada, Mexico, while cruises to
Alaska from Seattle generally stop in Vancouver. But neither of those
constitutes a cruise to nowhere because passengers are transported between U.S.
ports via a foreign port.

What the cruise lines are now calling a “change” arose from
a ruling in a 2014 federal lawsuit filed by Bimini Superfast Operations, operator
of the Resorts World Bimini Superfast, a ship owned by the Asian casino giant
Genting.

In 2013, Bimini Superfast began offering gambling-focused
cruises to nowhere from the Port of Miami, with crew members holding D-1 visas.
Bimini Superfast found itself in trouble when it tried to expand its
cruise-to-nowhere operations to sailings out of Fort Lauderdale’s Port
Everglades.

At that time, CBP officials told the cruise line that in
order to operate cruises to nowhere, they must “employ persons legally authorized
to work in the United States, since such cruises did not touch a foreign port.”
That ruling was upheld by a U.S. District Court judge in 2014.

The results of that ruling are now trickling down to the
major cruise lines.

“A cruise to nowhere is a domestic form of travel,” a CBP
spokesperson said last week. “The laws governing what visa is needed to be able
to work aboard a cruise to nowhere have been in place and enforced since 1955.
Since the legal case of Bimini SuperFast v. Winkowski, CBP has been working
closely with the cruise-line industry to ensure that we are holding all cruise
ships to the same standards.”

While the ruling has little impact on the industry because
cruises to nowhere are a tiny percentage of the lines’ overall cruise product,
they do serve a purpose. 

Norwegian President Andy Stuart told Travel Weekly earlier
this year regarding the Norwegian Breakaway’s two-day cruises to nowhere that
“lots of people do it as a taster.”

“People who cruise bring [non-cruisers],” he said. “It’s a
good way for people who are unsure to get off the fence.”

Depending on the extent to which the rules are enforced,
travel agents could end up being affected more than consumers. It was not
entirely clear last week if the rules would prohibit cruise lines from offering
nonrevenue cruises to nowhere, such as the ones that they offer to introduce
new ships.

Cruise lines often bring new vessels to markets like New
York and organize preview cruises to nowhere so that travel sellers can become
familiarized with the product before selling it to their clients.

CLIA’s statement said that the rules applied to “cruises for
sale that do not include a call in a foreign port,” which would seem to suggest
that inaugurals and other nonrevenue sailings could be exempt, but a CBP
spokesperson said the rule would “apply to all cruises leaving U.S. ports as it
pertains to the visa status of the crew members.”

McLeod said he guessed that cruise lines would adapt either
by holding such events on the pier, where they won’t be able to open their
shops or casinos, or by perhaps asking for exceptions when they are introducing
new vessels.

The CBP, which has a long relationship with the cruise
lines, understands that these sailings are special events and unlike with
Bimini Superfast do not constitute its business model.

“If you’re a good citizen like Carnival Corp. or Norwegian
or Royal Caribbean, and you want to offer a nonrevenue cruise, you can file and
ask for an exception,” McLeod said.