US flag and Cuba

[Factotum]

I sailed to Cuba in February 1999. The Cuban authorities did not stamp our passports and were quite polite. You cannot spend any USA Dollars there, so spend Euros or some other denomination. The Coast Guard in Key West gave me a grilling upon our return, but I had all of my required letters at hand, so it all went well.

After I returned, other sailors decided that it was wise to come back through the Bahamas, and that the USCG cannot require you to admit that you went to Cuba. It seems that the 5th Amendment about self-incrimination protects you from being forced to make any statement against your interests.

[boatpoker]

Hope the OP checks in and gets permission from Cuba to anchor in their waters. If not he's in for a world of grief.

[walkabout08]

The responses are conflating two separate questions:
1. Can a US flagged vessel legally enter and/or cruise in Cuban waters?
2. Are non-US passport holders subject to US travel restrictions if they are transiting on a US flagged vessel?


I don't pretend to know about the answer to question 1. Regarding #2, I don't see how non-US passport holders could subject to US travel restrictions, even if aboard a US flagged vessel.

[walkabout08]

I was crew on board a J-111 for the Miami to Havana race in 2016. We returned via Key West and when we called into customs they told us to take a cab to the airport to check back into the US. No one from customs bothered to even look at the boat!

[Montanan]

Originally Posted by aeronautic1

You're headed to Mexico? No problem. Enjoy Cuba.

Perhaps if you are neither: 1) a US citizen or permanent resident, or 2) have a USA flagged or owned vessel, if such attributes apply then presently entry to Cuba would be illegal under US Federal law [Export Administration Regulations / EAR] as being regulated exports originating from the USA. Nota bene: When one enters the territorial waters of the USA, that constitutes an import into the USA, when one sojourns away from the territorial waters of the USA, that constitutes an export from the USA and the vessel and its contents are subject to USA import and export regulations simply by crossing into and out of the USA territorial waters. If you do not wish to be subject to US EAR, Customs and Immigration control then never enter the USA waters and land.

Specifically:

Paragraph (d)(6) of License Exception AVS contains Cuba-specific terms and conditions for the temporary sojourn of vessels to Cuba. This rule amends paragraph (d)(6) to remove passenger and recreational vessels from eligibility for temporary sojourn to Cuba. Now only cargo vessels for hire for use in the transportation of separately authorized items are eligible for export or reexport to Cuba on temporary sojourn provided all of the other terms and conditions of License Exception AVS are met. This rule also simplifies and makes conforming changes to paragraph (d)(6) of License Exception AVS. Making passenger and recreational vessels ineligible for License Exception AVS when destined for Cuba also supports the President's policy to restrict non-family travel to Cuba.

Amendment to Cuba Licensing Policy
When a license exception is not available, § 746.2(b) of the EAR explains that license applications for the export or reexport of items to Cuba are subject to a general policy of denial unless otherwise specified in that paragraph. This rule redesignates paragraph (b)(3)(ii) as (b)(4) and revises the text of the new paragraph (b)(4) to explain that applications for the export or reexport of most aircraft or vessels on temporary sojourn to Cuba are subject to a general policy of denial unless the export or reexport is consistent with the foreign policy or national security interests of the United States.
. . .
A note to paragraph (b)(4) explains that applications for private and corporate aircraft, cruise ships, sailboats, fishing vessels, and other similar aircraft and vessels will generally be denied. As a licensing policy of denial indicates, BIS will only issue licenses for the temporary sojourn to Cuba of non-commercial aircraft or non-cargo vessels if such action is consistent with the national security and foreign policy interests of the United States, such as the temporary sojourn of vessels for use in oil spill response. Given the Administration's stated objectives of holding the Cuban regime accountable for its repression of the Cuban people, including by restricting non-family travel to Cuba, such licenses will be issued only in extraordinary circumstances. Thus, non-commercial aircraft and non-cargo vessels generally will be prohibited from going to Cuba.


As to non-USA citizens and / or USA permanent residents and non-USA sojourned vessels:

Cuba has only eight ports of entry and your landfall must be at one of these designated ports. Under no circumstances should you arrive and anchor in a bay.

Yachts may only clear in at a port of entry that also has a marina facility.

ARRIVAL FORMALITIES

Advance Notification:

As soon as Cuban territorial waters are entered 12 miles off the Cuban coast a yacht must contact the port authorities or coastguard (Guarda Frontera) on VHF Channel 16 or 77 or HF (SSB) 2128KHz. As most officials use hand-held radios, you may not be able to do this until closer inshore.

Various authorities also operate on the following:

Red Costera Nacional (coastguard net): HF(SSB) 2760KHz

Red Turistica (tourist net): HF(SSB) 2790KHz

Tourist Services: VHF Channel 19

Don’t worry if you don’t get an answer. If you have AIS on board it is likely the authorities will already be tracking you and will try to contact you via VHF and organize for officials to be there for your arrival.

In most ports, the harbormaster will answer in English. The following details should be communicated: name of the yacht, flag, port of registry, last port of call, intended port of arrival in Cuba with approximate ETA, type of yacht and number of people on board. The captain will then be given instructions to proceed.

On arrival in Cuba, yachts must go to the nearest Port of Entry, with the Q and courtesy flags flying.

The main port of entry for yachts is Hemingway Marina immediately to the west of Havana. All ports with marinas have tourist facilities and are used to clearing in yachts. The commercial port of Havana should not be entered as it has no provision for clearing yachts.

Once moored in port, wait for the officials to arrive and no one must go ashore until clearance is completed. You may be asked to anchor out for clearance. How many officials come on board will depend on the port, anywhere between 2 and 12 and possibly a sniffer dog as well.

An exit zarpe from your last port is not necessarily required. Neither the USA or The Bahamas normally issue one.

Clearance must first be obtained from Quarantine health officials, after which are the visits by Immigration, Customs, Agriculture Department officials and Guarda Frontera (Coast Guard). These officials are based in the marina and clearance is usually completed promptly (2-3 hours), unless you have firearms aboard.

Items such as portable GPS, radios, flares and telephones may be sealed on-board by Cuban Customs until departure.

Domestic Cruising:

Once initial clearance is completed, a coastwise cruising permit (despacho de navegacion – Costera) can be obtained from the Coast Guard (Guarda Frontera) on departure. Be sure to advise the harbor master that you intend to cruise Cuba so the Guarda can be prepared. You must submit a cruising itinerary which has to be approved and the Coast Guard will keep track of you.

This permit currently allows you to cruise the waters of Cuba, it does not allow you to go ashore, except at a designated marina.

When cruising along the coast, one must report to the Guarda Frontera office in every port. However, nearly everywhere you stop an official will row out to you, will ask for your details and be very pleased if you produce a Spanish version of the answers he requires as he can then fill in his forms ashore. He will want to know your time of departure, will take your despacho away and, whatever time, will return it to you before you sail. All papers are usually inspected.

Officially yachts may only visit harbors and anchorages where there are marinas – except for the offshore cays. No other anchorage or harbor may be visited and if it is, the captain and crew may not go ashore.

CLEARING OUT

Twenty-four hours’ notice of departure should be given, if possible, even if sailing to another port in Cuba.

Before departure, one must clear out with the Guarda Frontera at an official port of entry/exit. They will retain the despacho and issue a new exit despacho (clearance certificate) along with the cruising permit. One must also clear out with customs and immigration.

Foreign yachts (i.e. non-US boats) might find it advisable to leave Cuba for another country, such as the Bahamas, and make entry into the United States from there, as cruisers continue to report being denied a cruising permit for the US when trying to clear into Florida, having come directly from Cuba. I.e., you may not be allowed to enter the USA again, that is to say, Blacklisted for having visited Cuba.

[boatpoker]

Originally Posted by walkabout08

2. Are non-US passport holders subject to US travel restrictions if they are transiting on a US flagged vessel?


I don't pretend to know about the answer to question 1. Regarding #2, I don't see how non-US passport holders could subject to US travel restrictions, even if aboard a US flagged vessel.

You may be right. They may not be able to detain/arrest the crew but they certainly can arrest the vessel.

[Montanan]

Originally Posted by walkabout08

The responses are conflating two separate questions:
1. Can a US flagged vessel legally enter and/or cruise in Cuban waters?
Yes, but if and only if, it has received specific USA EAR licensing to do such and that is exceptionally hard to get as the purpose has to be in the interest of US Foreign Policy and Security.
2. Are non-US passport holders subject to US travel restrictions if they are transiting on a US flagged vessel? Indirectly so, because the vessel [or aircraft] that they are aboard is of USA nationality and thus the vessel is under USA regulation, meaning the vessel may not go to Cuba, or other restricted countries. But the passenger could always jump ship and swim the twelve miles to Cuban shore.


I don't pretend to know about the answer to question 1. Regarding #2, I don't see how non-US passport holders could subject to US travel restrictions, even if aboard a US flagged vessel. Your decision to board a USA vessel results in USA maritime law regulation. No different than boarding of any other flagged vessel. A passport does not of itself create any rights in the country being visited or obligate the issuing country in any way, such as providing consular services. Where a country does not recognise another, or is in dispute with it, it may prohibit the use of their passport for travel to that other country, or may prohibit entry to holders of that other country's passports, and sometimes to others who have, for example, visited the other country. Some individuals are subject to sanctions which deny them entry into particular countries.

See above.

[Montanan]

Originally Posted by walkabout08

The responses are conflating two separate questions:
1. Can a US flagged vessel legally enter and/or cruise in Cuban waters?
2. Are non-US passport holders subject to US travel restrictions if they are transiting on a US flagged vessel?


I don't pretend to know about the answer to question 1. Regarding #2, I don't see how non-US passport holders could subject to US travel restrictions, even if aboard a US flagged vessel.

Originally Posted by boatpoker

You may be right. They may not be able to detain/arrest the crew but they certainly can arrest the vessel.

If the vessel directly or indirectly departed from [was exported] from the USA and the persons on board participated in anyway in performing the export of the vessel then they too could be arrested and subject to US law if the export was to become an illegal export, for example, being conveyed to Cuba. A non-USA passport does not give permission to break USA law, nor any protection against USA laws. The non-USA passport holder's ignorance of USA law is no excuse to USA jurisdiction.

Note, US EAR and ITAR involve more than just the export of physical goods, it also involves transfer of knowledge.

By way of example:

Both the ITAR and the EAR regulate Deemed Exports: releasing or otherwise transferring controlled technical data to a foreign person in the United States, or to foreign person outside the USA. So how does this impact hiring foreign nationals to work on ITAR/EAR projects? Hiring foreign nationals presents an opportunity for a deemed export and therefore possible export compliance implications.

ITAR/EAR do not impose requirements on U.S. companies concerning the recruitment, selection, employment, promotion, or retention of a foreign person. Instead, employers are required to obtain export licenses for non-U.S. person employees if their positions require access to information governed by the ITAR/EAR. Under both regulations, the deemed export rule applies only to foreign persons and, by definition, does not apply to “U.S. persons,” which includes U.S. citizens, persons lawfully admitted for permanent residence in the United States (e.g., green card holders) as well as persons who are protected individuals under the INA (e.g., certain refugees and asylees).

As a reminder, the term “US person” in the ITAR or EAR means: (1) US citizen; (2) A US lawful permanent resident as defined by 8 U.S.C. § 1101(a)(20); or (3) A certain class of “protected individuals” as defined by 8 U.S.C. § 1324b(a)(3) (e.g., US nationals, refugees and asylees).

I have had issues with being able to have discussions [telephone, video conferences, visitations] and correspondence [emails, letters, data transfers, presentations] with non-U.S. persons regarding subject matters of EAR and ITAR involvement. Was particularly difficult when one of the "persons" was also the co-inventor, co-founder of one of our companies, and a person with dual citizenship [American and Chinese]. A former Director of the CIA explicitly told me that because of the potential national security matters of a novel technology, we had to be concerned regarding both physical and data security, of ourselves and of our knowledge. I recall asking him with regards to our physical security whether that meant that I needed to get a Pit Bull to guard my Basset Hound? My reply to his remark, broke the tension of the large gathered multi-national participants on our introductory telephone conference call, which call became quite silent and awkward when the former Director of the CIA brought up the not before considered security concerns.

[Montanan]

Originally Posted by walkabout08

The responses are conflating two separate questions:
1. Can a US flagged vessel legally enter and/or cruise in Cuban waters?
2. Are non-US passport holders subject to US travel restrictions if they are transiting on a US flagged vessel?


I don't pretend to know about the answer to question 1. Regarding #2, I don't see how non-US passport holders could subject to US travel restrictions, even if aboard a US flagged vessel.

Maritime law is murky and rather difficult to clarify (in part because every country has its own version of it), most cases of ship board crime are decided on a case-by-case basis. Law on a ship starts with the flag the ship is flying under. A ship flies the flag of the country where it's registered, and, in general, the laws onboard a ship are the laws of that country. However, when figuring out which laws apply on a sea vessel, territory also must be taken into consideration. Legal jurisdiction on the sea goes something like this [source: Justia]:

A country's internal waters -- areas like bays and ports -- are a part of that country. So when a ship is docked at the Port of Miami, all U.S. (and Florida) laws apply to the ship, its passengers and its crew.
Almost all of a nation's laws also apply in its territorial waters which extend up to 12 miles from its coastline.
A nation has limited jurisdiction in its contiguous zone -- the area 12 miles to 24 miles from its coast. A country has certain rights within that zone, such as patrolling its borders. For instance, within 24 miles of the U.S. coast, the U.S. Coast Guard is allowed to board any ship suspected of drug smuggling, regardless of which flag it's flying under.
Once a ship is 24 miles from any coastline, it's on the high seas (or international waters). With the exception of certain rights within the contiguous zone, the law of that ship is the law of the country whose flag it's flying. So, a Liberia-registered cruise ship that's 25 miles off the coast of California isn't subject to U.S. law; it's subject to Liberian law.

[Montanan]

Originally Posted by walkabout08

The responses are conflating two separate questions:
1. Can a US flagged vessel legally enter and/or cruise in Cuban waters?
2. Are non-US passport holders subject to US travel restrictions if they are transiting on a US flagged vessel?


I don't pretend to know about the answer to question 1. Regarding #2, I don't see how non-US passport holders could subject to US travel restrictions, even if aboard a US flagged vessel.

Dear Walkabout. I perceive that you have a bit of a misguided perception of what an issuance of a passport involves and what its purpose is.

A passport is merely an identity document that is widely recognised for international travel purposes, and the possession of a passport does not in itself entitle a traveller to enter any country other than the country that issued it, and sometimes not even then. Many countries normally require visitors to obtain a visa. Each country has different requirements or conditions for the grant of visas. A passport does not in itself convey any special privileges. It is merely a document from an authority of a country that says, the issued person is deemed to be the person the document says they are and that that person is typically a citizen of that issuing country.

[goboatingnow]

Originally Posted by XSPACE2

Yes. and not only for tax reasons ( my boat is 32 ft and 30 years old,, taxes are peanuts).. but if you buy a boat built outside EU you will need all originals plans, and certificates from the company who built it to register it in any EU country ... In USA you just need a bill of sale ( usa always been more simple than EU for paperworks) ... this is one of the reasons.... To be honest US flag is useful and welcome in that case , but not ideal :.. yes US navy is very present worldwide to help and protect you, but on the other hand a few countries are a bit 'cold' with US boats , and for pirates and in poor countries US flag = $ on board.

The bit about register in eu and needing plans etc for a non eu build is all nonsense

Most eu registries will need a builder cert , and an ownership trail plus evidence of vat. Some require rcd certification, many do not.

[fritzthecat]

Originally Posted by XSPACE2

hi everyone ! I hold a european passport (Belgium) but my sailboat is registered in Delaware and docked all year in FL so i navigate under US flag. Can i anchorage in Cuban waters during my route Keys > Isla mujeres ?

No problem at all, justv sail there and on the way back you have to do a stop at Mexico, Jamaica or the Cayman Islands.... they do not stamp your pasports... they give you a tourist card, where there is the stamp on.... lots of fun, best lobstering in the world....

[Knotyou]

Originally Posted by XSPACE2

hi everyone ! I hold a european passport (Belgium) but my sailboat is registered in Delaware and docked all year in FL so i navigate under US flag. Can i anchorage in Cuban waters during my route Keys > Isla mujeres ?

Cuba just reopened to tourists last week. I’m an American member of Hemingway Marina in Jaimanitas. The Commodore confirmed that they are open to receiving foreign vessels but Covid restrictions are strictly enforced.